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

[pemerton]

Lawyerly question: If WotC is effectively trying to put an expiration date on the OGL 1.0a license (ie everything published before X date will continue to be publishable under that license but anything after X date cannot use the terms of that license to reuse, republish, or redistribute new material based upon the old material published before X even though WotC is saying that those works are not copyright infringing based upon the use of that license) how does such an idea interact with the idea of "Perpetual" in regards to the works that are considered non-infringing in WotC's eyes?

Does putting such an expiration date on a perpetual license (by creating works that are OK prior to X date and not OK after X date) create an additional conflict? (ie, does a "partial revocation" like this create additional problems?)

I kind of think that's an even weaker claim by them, since the licenses they granted include the right & duty to re-license all OGC on the same terms. If the old OGL 1.0a licences are valid, then that term is valid, too!

Edit: They're not claiming to revoke a perpetual licence. They're claiming to alter the terms of the licence post acceptance. That seems an obvious no-no.

To me, it seems to depend on the proper construction of the contract: what is the precise scope of the power to sub-license that is granted to licensees, and how is that power regulated by other general legal principles?

Does this turn, in part, on property/IP law principles? Agency principles? Even sticking just to contract law I can see complexities:

Upthread (or maybe in one of the other threads) I noted that the terms of the OGL v 1.0/1.0a, which confer on the licensee a permission to use "the Open Game Content", are unclear as to whether that permission extends to all of the OGC that is in the SRD or only the OGC that the licensee actually uses in their work: ie is the OGC that is referred to in section 4 the OGC identified by WotC in its licensed work, or is it the OGC the use of which, by the licensee, constitutes acceptance for the purposes of section 3?

If WotC now revokes its standing offer to licence the text in the SRD that it has identified as OGL, does that affect the proper construction of the conferral of the permission conferred by section 4? Eg does "the OGC" mean "the OGC that is found in the SRD and that the contributor continues to offer to licensees under the terms of the OGL"?

I don't necessarily think that the above is a winning argument, but it's not necessarily hopeless either. I certainly think it's stronger than the (in my view) spurious assertion of a power of "de-authorisation".

 

[Greg Benage]

I don't necessarily think that the above is a winning argument, but it's not necessarily hopeless either. I certainly think it's stronger than the (in my view) spurious assertion of a power of "de-authorisation".

It definitely seems as though "deauthorization" is their approach, rather than revocation of the license.

 

[pemerton]

It definitely seems as though "deauthorization" is their approach, rather than revocation of the license.

Does the latest announcement use the concept of authorisation? I didn't notice it, but my read-through was fairly quick.

 

[The Stray]

Does the latest announcement use the concept of authorisation? I didn't notice it, but my read-through was fairly quick.

They very carefully avoided much information, but they talked about works used in the OGL 1.0a in the past tense, which is telling.

 

[Scars Unseen]

Here's my question for the group: If the next OGL was the exact same except it banned offensive stuff and NFTs, and was explicitly irrevocable, would you go along with it?

Because, presumably, if the old OGL was not "deauthorized" or revoked, couldn't bad actors just use the old one to make NFTs and racist stuff?

Doesn't the old OGL need to go to prevent that?

Is it only that people want to keep making stuff for 3e and 5e, or is it something more?

Nope. 1.0a gets protected explicitly. Then they can have whatever other clauses they want for future SRDs.

NFTs are a non-issue because they're already widely known to be a scam.

Racism in the context of an open content license is a non-issue because the larger community is already pushing against that, so it doesn't find any traction. Not saying I don't care about it. Just saying that in an industry that already has thin profit margins, bigotry just isn't a road to a market share worth mentioning. Certainly not worth actively blocking people from creating content under standing open licenses.

Those "issues" raised by WotC were always red herrings meant to distract from the goal of getting a firmer grip on the market through restrictive licensing. So no.

 

[Greg Benage]

Does the latest announcement use the concept of authorisation? I didn't notice it, but my read-through was fairly quick.

This is my (perhaps flawed) understanding of a response to me from @Steel_Wind in that thread. The blog post states: "Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a."

I argued that my previously published content can "always be licensed under OGL 1.0a" only if there is an OGL 1.0a. Therefore, it seemed to me, OGL 1.0a would not be revoked. But then, if OGL 1.0a is not revoked, what's to stop a publisher from publishing future works under the license?

@Steel_Wind stated that this was incorrect, and that there was a distinction between "revocation" and "deauthorization." His argument, as I understood it, is that (in theory) WotC could leave 1.0a in place (i.e. not revoke it) and still "deauthorize" it for the purposes of work published after a designated date. This is in line with previous leaks, which have stated that OGL 1.0a would "no longer be an authorized license."

ETA: @Steel_Wind's post is #592 in that thread. I'm fairly certain I've interpreted it correctly.

 

[jgbrowning]

This is my (perhaps flawed) understanding of a response to me from @Steel_Wind in that thread. The blog post states: "Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a."

I argued that my previously published content can "always be licensed under OGL 1.0a" only if there is an OGL 1.0a. Therefore, it seemed to me, OGL 1.0a would not be revoked. But then, if OGL 1.0a is not revoked, what's to stop a publisher from publishing future works under the license?

@Steel_Wind stated that this was incorrect, and that there was a distinction between "revocation" and "deauthorization." His argument, as I understood it, is that (in theory) WotC could leave 1.0a in place (i.e. not revoke it) and still "deauthorize" it for the purposes of work published after a designated date. This is in line with previous leaks, which have stated that OGL 1.0a would "no longer be an authorized license."

I'm very interested in how they plan to say that legacy products are considered licensed via the 1.0a but not licensed enough to allow for new content to be created from them. Which the 1.0a, which they just said is considered an authorized license for legacy products, is what those products have been published under.

If WotC wants to do that, they're required to revoke or unauthorize the license and then declare "we are not going to pursue copyright litigation against all previously-published material under the 1.0a license, but will we on any new material published under the revoked and or unauthorized license."

What they cannot say is "this is an authorized product under the 1.0a" (even for a "grandfathered legacy product) while saying "but you can't use it to make additional new derivative material like this authorized license says you can" because those two statements are logically in opposition.

Unless they believe they can pick and choose which parts of the 1.0a license that they can "authorize" or "unauthorize." Which to me seems an even bigger can of legally-problematic worms than saying they unauthorize the whole thing or revoke the whole thing.

Sadly, I expect the soon-to-be seen legalese to be deliberately left vague because the goal isn't for clarity to exist there, but for confusion and uncertainty. I would love to be wrong, and really hope that I am.

joe b.

 

[pemerton]

This is my (perhaps flawed) understanding of a response to me from @Steel_Wind in that thread. The blog post states: "Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a."

I argued that my previously published content can "always be licensed under OGL 1.0a" only if there is an OGL 1.0a. Therefore, it seemed to me, OGL 1.0a would not be revoked. But then, if OGL 1.0a is not revoked, what's to stop a publisher from publishing future works under the license?

@Steel_Wind stated that this was incorrect, and that there was a distinction between "revocation" and "deauthorization." His argument, as I understood it, is that (in theory) WotC could leave 1.0a in place (i.e. not revoke it) and still "deauthorize" it for the purposes of work published after a designated date. This is in line with previous leaks, which have stated that OGL 1.0a would "no longer be an authorized license."

I don't know what @Steel_Wind had in mind.

But not far upthread I posted the best argument I can see, based on my thinking so far, to support what WotC now says that it wants to do.

Way, way upthread @bmcdaniel expressed the view that the power to sub-licence following revocation by WotC of its standing offer was an uncertain thing:

Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

You might recall that several times I've said that IP is not my main field. Legal interpretation is, but I work primarily on the interpretation of statutes and constitutions, not contracts, and those public law instruments bring some distinct stuff with them.

So it in part reflects my own interests, inclinations and abilities to construct - as I have done above - an argument for WotC that rests on what seems to me to be a somewhat plausible if less than self-evident interpretive move, which exploits an ambiguity in the definite description that occurs in section 4. I don't assert that my idea is definitive in any way. But I do think it is consistent with what bmcdaniel posted.

Whereas I cannot see any interpretive move that establishes a power of "deauthorisation" based on the construction of section 9. Which is not to say that there isn't one, but no one has actually explained what it would be. Whereas I have set out upthread both a reasoned interpretation of section 9 (which I think is fairly straightforward) and the issues I see in section 4 (which I think is very complicated from the interpretive point of view).

 

[Greg Benage]

To be clear, I don't know where they find this power to "deauthorize" either, and I certainly don't see where they can "deauthorize" it for the purposes of some works but not others. But this does seem to be what they've latched onto, as distinct from "revocation" of the license.

 

[pemerton]

I'm very interested in how they plan to say that legacy products are considered licensed via the 1.0a but not licensed enough to allow for new content to be created from them.

I've set out the argument - or at least one argument - just upthread. It turns on the need to interpret the ambiguous phrase "the Open Game Content" that occurs in section 4.

If WotC wants to do that, they're required to revoke or unauthorize the license and then declare "we are not going to pursue copyright litigation against all previously-published material under the 1.0a license, but will we on any new material published under the revoked and or unauthorized license."

I don't agree with this.