OK, I read that post. It seems consistent with my posts just above.
@Steel_Wind is not using "de-authorization" as a term of art, as best I read his post. And he doesn't actually set out an argument as to how WotC might achieve what it wants to achieve - he just states the result.
The interpretive argument I've set out is the best one I know of that actually produces, in a legally reasoned manner, the result that WotC appears to be aspiring to.
(Of course I haven't considered the extent to which matters that sit outside the licence - like the FAQ and other conduct by WotC and its officers - might bear upon the interpretive questions. That's part of why I do not suggest that my argument is sound, or even likely - just that it seems to me not hopeless.)
There appears to be a difference between what I understand how the "de-authorization" argument works, and how others conceive of it. The confusion (in some quarters) arises through a muddle of unclear thinking - and a confusion between forms of an offer yet to be accepted, and the form of an
executed license agreement which has been accepted and is currently in place. They look like the same thing -- but they aren't.
Firstly, there is a difference between the FORM of the OGL 1.0a license, on the one hand referring to the form and content of a text document that amounts to an offer -- and the FORM of an executed license contract, being an offer which was accepted and complied with, with consideration moving between the parties and is in place. They appear to be identical, but one of them is an offer and is mutable -- indeed -- wholly revocable at will by WotC, while the other, after acceptance, is a contract that can no longer be changed other than in accordance with its terms (and even then). The ability of WotC to "update the license" is not the same thing as WotC being able to "update an executed contract". Those are not the same things, at all.
Under the principles of contract formation, WotC can choose to unilaterally alter the form of any offer it makes; that means that WotC can choose arbitrarily and when it sees fit to alter the form of any OGL offer it will make in the future. Nobody is seriously suggesting that they can't do that,
generally speaking.
Just because a party made an offer in a particular form last week, last month or last year, does not normally bind them to do so next week, next month or next year,
unless there is some other basis to contractually hold them to that promise.
I do not doubt that WotC can unilaterally withdraw its offer to enter into further fresh OGL 1.0a agreements in the future; they can unilaterally withdraw that offer. However, that same unilateral power is about changes to offers, it says nothing about changes to an OGL 1.0a agreement to which it is already a party and which is underway.
There is no power under the OGL 1.0a for WotC to announce it is changing or altering the terms of an
existing license contract. So if a 3pp has complied with the OGL 1.0a license terms and printed 5,000 books, shipped 4,000 out of its warehouse and sold them to a distributor, there is nothing that WotC can do under that license to alter the validity of those lawful acts under the license agreement. That bullet has left the chamber. There is no power to revoke, by way of de-authorization or otherwise, in my view.
So, in the case of 5,000 books printed, 4,000 shipped out, and 1,000 sitting in the warehouse still:
1- the OGL 1.0a is not capable of retroactive amendment so as to disentitle the distributor to distribute or the retailer to sell the 4.000 books in the system;
2- In my view, the same result applies to the 1,000 books still in the 3pp publisher's warehouse, the grant of the rights under the OGL 1.0a is noted in s.4 of the license: "4.
Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content." There is no restriction or gloss on use and s. 9 doesn't enter into it.
3- The uncertainty looking forward is how does this apply in three specific future instances:
a- how does it apply to new copies of the same book I have already released under the OGL 1.0a license?
b - how does it apply to derivative works I or another might make use of the previously released licensed work in the future?
c- how does it apply to a completely new work somebody else might make in the future? (See above - entirely new offer and WotC can do whatever it wants here)
a - I take the position that on a reasonable construction of the license contract, the license, once exercised, is perpetual and as it is for consideration, it's not revocable. I get to make new copies of that same book next week, next month, and next year. That use is not using a
new license, rather, it's simply making new copies of the same book I already have under an
existing license with a term that does not expire. Perpetual has that meaning. (I think a court is
very likely to agree with this interpretation, btw.)
b - derivative works:
this is the difficult part. On the text of the license itself, without going to parol evidence concerning what the parties understood and represented the agreement to mean, any subsequent use of the material in a derivative work could be pursuant to a mix of using a new license and in relying upon an old one, and here s. 9 comes into play, so pay attention.
WotC can amend the form of the OGL, there is no ambiguity about that --
they absolutely can. The only question is, under the wording of s. 9 of the license, can they amend the OGL license in a way which prevents a derivative work from being unable to rely upon the OGL 1.0a, and instead, be restricted to the terms of using only the newly amended license terms?
This is the contractual source of the "de-authorization" argument:
"9. Updating the License: 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."
You will note that this only applies in the event that a work has been previously distributed under a version of the OGL. We don't worry about this section in terms of a work that has not been previously distributed. In that event, we are back to the "Contract First Principles" that WotC can unilaterally change the terms of its offer at any time. But with derivative work, we are talking about stuff already out there in the wild under the OGL 1.0a.
There are two possibilities:
1 - WotC amends the form of the OGL 1.0a, to OGL 1.5, say. And a subsequent use of that previously distributed game content under the OGL 1.0a is now subject to OGL 1.5, not 1.0a; OR.
2- WotC amends the form of the OGL 1.0a, to OGL 1.5, the new publisher elects to ignore 1.5 and instead elects to continue to use the OGL 1.0a in accordance with s. 9 of the OGL 1.0a.
On a plain reading of s.9, scenario #2 is what is supposed to occur.
WotC now says that they have amended the OGL to 1.5, and that they no longer authorize the use of 1.0a.
WotC can absolutely say this going forward for new content - because that ability doesn't arise under a contract, it arises under the power of any party to change or amend the form and terms of an offer to contract (not the same thing).
But WotC can't do this in respect of content that was previously distributed under the OGL 1.0a license, because that distribution is now subject to the terms of an existing contract. You don't get to arbitrarily change the rules after that race has started to run. That content gets to be used -- and re-used -- under the OGL 1.0a, as that is an authorized form of the license and the initial publisher was (and currently is, and will be in the future) entitled to rely on it -- at least for republication purposes -- and the new publisher is too.
But for new publication purposes of new content? No. We are back at WotC getting to change the terms of the offer going forward as they may prefer.
There is no express mention of, or even a necessary or implicit interpretation within s. 9, that WotC can "de-authorize" a form of the OGL and so prevent it from being used to publish previously published content. If the form of license was authorized, the licensee
explicitly gets to pick and choose from which previous authorized form(s) it prefers to use in distributing previously released content. That a licensee is explicitly empowered to pick and choose which authorized form it wants, and the same section is interpreted to wholly take away the benefit of that election - that would be a perversion of the plain meaning of the section, imo.
Not only is there no power to "de-authorize" mentioned, but the necessary implication of s.9 as written is that multiple forms of an OGL may have been authorized in the past, and the publisher gets to pick and choose from any of them to use to publish previously distributed content, as they may prefer. There is no power to de-authorize, the only power is to update the form of the OGL, going forward. No only is there no power to de-authorize, but the most reasonable interpretation of s. 9 is that de-authorization is implicitly (if not explicitly)
forbidden.
Just so long as you understand that the entitlement to continue to rely upon 1.0a applies ONLY to distributing previously released material. It doesn't govern a license for wholly new material - and it
arguably doesn't govern the release of derivative material either. On the derivative works issue, that may be subject to a new form of OGL license that WotC might choose to update and restrain or curtail...
or maybe not, too. (Here, there is parol evidence to inform the court as to what the parties intended and understood the contract to mean concerning this use).
Practically speaking, it means it is going to be very hard for WotC to escape the ongoing use of the 5.1 SRD which was released under the OGL 1.0a. They don't get to make that vanish or prevent it from being distributed under the OGL 1.0a in the future. Where it gets difficult is with
derivative material. When it comes to new material, that is where WotC has freedom and room to change the ground rules, not under the terms of an existing OGL license contract, but as a person who has the freedom to contract -- and not contract -- on the basis of any offer it chooses to make in the future.
As for rushing about and trying to "get under the wire" and make use of 1.0a while they still can, I put it to you that this is one of the motivating factors which is behind Kobold Press' moving forward with Project Black Flag in a manner which seems to be motivated with
great haste. I think that's why they are doing what they are doing as the protection for someone who is already under the the OGL 1.0a is present, and it simply isn't at all for those who have not yet published.
