So WHY Didn't The OGL Contain The Word 'Irrevocable'?

Whether or not the Open Game License v1.0a is revocable is one of the main things being argued about during this whole OGL-gate crisis, with lawyers firmly stating opinions on both sides of the issue. We all know that Ryan Dancey, the OGL's 'architect' (along with IP lawyer Brian Lewis, who was WotC's in-house counsel at the time) firmly believes that the license is irrevocable--in his words, "If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license."

But why didn't it just say so? On the face of it, including that simple word might have prevented this whole crisis. Dancey commented on Facebook:

because in Y2K that term was not used in state of the art copyleft licenses like the LGPL or the Apache or BSD licenses. There's no "magic word" in US contract law that lets you walk away from your obligations.

The OGL was based on existing software open source licenses; it even predates Creative Commons by a couple of years.

Just on this site there are lawyers on both sides of the 'revocabiity' debate, and on social media and elsewhere there are many more. In this thread no less than SIX lawyers weigh in over an 86-page debate, and they don't all agree. WotC clearly currently believes it to be revocable (but didn't believe so before), and Paizo believes the opposite.

The license does indeed contain the term ‘perpetual’, but many lawyers have argued that the precise legal meaning of that term is not the same as the common English meaning, and that it does not render a license irrevocable. On the other hand, legal minds have pointed out that the license contains no verbiage regarding 'de-authorization', or any mechanism for doing so. That said, if all lawyers agreed, we wouldn't need courts.

Ryan Dancey -- Hasbro Cannot Deauthorize OGL

I reached out to the architect of the original Open Gaming License, former VP of Wizard of the Coast, Ryan Dancey, and asked his opinion about the current plan by WotC to 'deauthorize' the current OGL in favour of a new one. He responded as follows: Yeah my public opinion is that Hasbro does...

www.enworld.org

It's clear that Dancey's, Lewis', and indeed WotC's intent at the time was to make it impossible to revoke the OGL, and that that was the proposition offered to third party publishers at the time. D&D historian Ben Riggs (author of Slaying the Dragon: A Secret History of Dungeons & Dragons) comments:

This is a radical change of the original intention of the OGL. The point of the OGL was to get companies to stop making their own games and start making products for D&D. WoTC execs spent a ton of time convincing companies like White Wolf to make OGL products. To act like the existence of Paizo or Kobold is a perversion of the OGL may be gaslighting, it may be ignorance, but it is certainly nonsense.

Everybody believed the OGL was irrevocable at the time. Dancey and Lewis did. WotC did. The entire industry did. Everybody. Whether or not the license can be de-authorized, it is certain that a breach of trust has taken place.

Dancey has posted a blog where he talks more about his current attempts to save the Open Gaming License.

Unfortunately, the leadership team at Wizards of the Coast has decided to unlawfully and in bad faith attempt to deauthorize v1.0a of the OGL. In mid-December 2022 they met with various parties who use the OGL and attempted to strong-arm them into signing onto a new OGL that repudiates the philosophy of Open Gaming that is embodied in v1.0a. The draft license that they attempted to force onto the community included onerous provisions that shifted control of the content created out of the commons shared by all participants equally and into a legal space controlled solely by Wizards of the Coast. Their new license was not, in any sense, an “open gaming license”.

The leverage that the company believed it had was their perception that they had the right to deauthorize and revoke the v1.0a version of the license. They do not. Attempting to do so will result in difficult litigation which ultimately poses a risk to Wizards of the Coast’s fundamental conception of what it can copyright and protect with US intellectual property rights laws.

 

[kigmatzomat]

The OGL was based on the GPL v2, which had been around for about a decade. V2 did not include the word "irrevocable". From what I recall, it was during the many SCO lawsuits in the mid 2000s that the combination of legal phrases used around "perpetual" and "authorized" was not equivalent to "irrevocable" leading to the term being in GPL v3.

However, it is notable that a LOT of software is still GPL v2, notably the Linux kernel. If WotC were to be successful in arguing the OGL could be broken, tomorrow Linus Torvalds could revoke the license for the Linux kernel and the world would fall apart.

Same goes for any developer of a key bit of ubiquitious software infrastructure who didn't assign their rights to the FSF or similar entity and, more specifically, their heirs. If Linus died while owning his copyrights and his kids were like the Hasbro execs, well, bad things.

As such, any actual lawsuits filed by Hasbro/WotC would almost certainly result in some of the most capable contract law firms being unleashed on Hasbro, in a mix of pro bono and amicus forms.

It would be pointed out in very stern terms that should Hasbro prevail against these legal titans, Hasbro itself certainly has a ton of GPL v2 code in its many digital offerings (mobile apps & DDB) as well as its corporate infrastructure and those would almost instantly be deauthorized. Not necessarily for the whole world, but for Hasbro in particular, either directly or indirectly.

So if they like their little game company being part of the modern world, able to use any computer software newer than Windows 3.11 and services more advanced than a fax machine, they should quietly walk away and never speak of this again.

 

[Seramus]

In short, they thought it was. In perpetuity was supposed to be forever. This is all about the meanings of words changing legal emphasis over time.

 

[Alzrius]

If anything good comes out of this brouhaha, it might be that we – eventually, after a long and costly court battle – get a binding legal ruling which truly affirms, once and for all, that the OGL v1.0a really is the safe harbor it was always presented as being.

 

[Bayushi_seikuro]

If anything good comes out of this brouhaha, it might be that we – eventually, after a long and costly court battle – get a binding legal ruling which truly affirms, once and for all, that the OGL v1.0a really is the safe harbor it was always presented as being.

I think a clear-cut ruling in either direction, while messy in the short term, would be a great step of knowing what exact boundaries are where, and what kind of language is needed going further.

We think we're good with legalese, even with well-read lawyers on here, but until the courts actually say something one way or another, we're back at Bill Clinton-levels of legalese.

A refresher from CNN, with what happened regarding the legal use of the word 'it':

The question: “Whether or not Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement that there was ‘no sex of any kind in any manner, shape or form, with President Clinton,’ was an utterly false statement. Is that correct?”

“It depends on what the meaning of the word ‘is’ is,” Clinton responded.

The definition of the word “is,” according to Webster’s Dictionary, is: “present tense third-person singular of be.” Obviously.

Later that day, the President said of his testimony, “While my answers were legally accurate, I did not volunteer information.” He also came clean on his affair with Lewinsky.

 

[GDGD]

If anything good comes out of this brouhaha, it might be that we – eventually, after a long and costly court battle – get a binding legal ruling which truly affirms, once and for all, that the OGL v1.0a really is the safe harbor it was always presented as being.

I'd love to believe that, but the law is never truly settled. That's both the benefit and the problem with common law: lawyers can always find some new angle to argue, and a new precedent can suddenly change what is and isn't allowed. Look at Disney. There's a perpetual battle by their legal team to extend the copyright on Mickey Mouse, even though by law it's expired several times. (I understand that's a very different issue, just illustrating how mercurial the law can be, especially when it impacts corporate interests).

My question is, does it matter? Let's say Hasbro walks back everything and recommits to OGL 1.0a. Does everything go back to normal? My guess is no. The industry understands now that they've all been working in the shadow of an existential threat. I'd like to believe we can build some sort of legal Maginot Line to stop this sort of thing from ever happening again, but I don't think it's possible. The OGL, in any form, has been proven by the whims of Hasbro executives to be the sword of Damocles. I'm very sure that ORC will become the new industry standard, and the marching order for every 3PP now is to disentangle themselves from anything OGL as quickly as possible.

Prediction #2, since I'm prognosticating, is that this will prove a watershed moment. The end result will be that TTRPGs are dominated by a few truly open source core rulesets. WOTC will be just one publisher of many contributing material compatible with these open source mechanics and they'll have no power or advantage or control over anyone else. Sort of like how no one owns the patent on the internal combustion engine. It creates a truly competitive industry where various auto manufacturers compete to offer the best vehicle at any given price point, each with its own features and benefits, but always developing and improving. I can very much see the TTRPG industry heading in that direction, starting now. Or starting a few days ago, more specifically.

 

[Staffan]

There's a perpetual battle by their legal team to extend the copyright on Mickey Mouse, even though by law it's expired several times. (I understand that's a very different issue, just illustrating how mercurial the law can be, especially when it impacts corporate interests).

That's a bit different. AFAIK, the Mouse hasn't really had to defend Mickey's copyright in court. Instead what they do is bribe provide campaign contributions to congressfolk who then go on to extend the copyright term every time it gets close.

Well, I think there was one time they had to defend against a suit claiming the extension was unconstitutional, but that's a bit different.

 

[GMforPowergamers]

In short, they thought it was. In perpetuity was supposed to be forever. This is all about the meanings of words changing legal emphasis over time.

The real question seems to be what the judge will think. Will the judge weigh more in on the side of "When it was written it meant" or "Right now it is excepted to mean" and of course a GOOD judge would listen to both sides and rule based on there arguments, and we don't know who will make the more persuasive argument.

 

[Xyxox]

All I can say is the GPL 2, which was the basis for OGL 1.0a, had the term "perpetual" and not the term "irrevocable" and it has certainly withstood the test of time and court tests. The term "irrevocable" did not enter into the GPL until GPL 3 in 2007, and numerous works are still released under GPL2 every year.

 

[GMforPowergamers]

All I can say is the GPL 2, which was the basis for OGL 1.0a, had the term "perpetual" and not the term "irrevocable" and it has certainly withstood the test of time and court tests. The term "irrevocable" did not enter into the GPL until GPL 3 in 2007, and numerous works are still released under GPL2 every year.

so the question is, back in 2007 why not update the OGL to the most resent wording?