Legal Discussion of OGL 1.2

[pemerton]

Yeah, I noticed the same thing and I really hope the forum's lawyers weigh in on it! Especially @pemerton since he had noticed the "withdrawing the offer" shenanigans long before anyone else did!

There is no straightforward way for a private party to bind themselves in respect of a gratuitous offer made to all the world. That's the nature of the common law of contract.

As with every legal principle there are nuances etc. I don't immediately see any nuance here.

 

[pemerton]

Question for the lawyers - If a company uses OGL 1.0a and does NOT include any WotC SRD content in it, would WotC have any grounds to sue?

Do you mean "does not include any WotC SRD content in it, but contains OGC that is derived from WotC SRD content" (eg perhaps some 3PP PF supplements)?

Or do you mean "is part of an ecosystem of OGC completely separate from the WotD SRC" (eg Mongoose Traveller or Evil Hat Fate)?

on the subject of de-authorization: let's say I make a Starfinder (released under OGL 1.0a, referencing the 3.5 SRD) adventure and put it up for sale, referencing Starfinder's Section 15. How can I be in violation of OGL 1.2 if I did not sign on to it? And how can I be in violation of OGL 1.0a if it is de-authorized? in other words, does WotC have any grounds to C&D me for a Starfinder (or Pathfinder or 13th age etc...) supplement?

In "de-authorising" the OGL v 1.0a, has WotC abandoned all its contractual rights against you? And does your work contain anything which could be an infringement of WotC's copyright in its SRDs?

 

[Greggy C]

At its heart, this is about Foundry VTT, because it's too good -- and trying to stop a fork of 5e so that WotC does not end up competing with a version of D&D all over again. They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

Foundry is a great piece of software for the home game, where one person is technical enough to run the software on their computer.
Or for the remote DM who can adjust their firewall settings to let people use it.
Or even for something who will host your foundry for you.
But it doesn't scale up to millions of users, all sharing the same database, like Roll20 does.
They aren't remotely concerned with Foundry.

 

[clearstream]

Ignore that minor stuff folks: pay attention to what WotC is doing and why. Why are they releasing the 5.1 SRD under 1.2 -- when they already did this under OGL 1.0a?

Pay attention:

View attachment 273139

Their VTT Tabletop Policy is at page 6. Here is the reason we are having this discussion in the first place. It's because of Foundry VTT and WotC's own planned 3d VTT, which they intend to sell at a monthly subscription rate, instead of, you know, FREE:

So we have: View attachment 273144

Now, I know that most of you aren't familiar with what Foundry VTT can do. I'd have to make a video of my own game content that uses many of these features which are supported via add-on modules to Foundry VTT (and which are, in turn, supported by artists providing animations monthly via Patreon).

When my PCs play in one of my Foundry sessions? Their characters are represented by top-down sprites. When those characters make an attack? There is a corresponding animation that is triggered, depending on the weapon they use, and if its hits or misses and a sound FX plays to match the strike, miss or what have you. When my PCs or bad guys cast spells, or a dragon breathes? There is usually an animation which plays, an accompany .ogg sound effect which is triggered -- and COOL STUFF HAPPENS on the screen.

This eye/ear candy is what WotC wants to sell with its forthcoming 3d VTT, to DMs and players alike, for a monthly subscription to everyone at the table. They don't care (much) about Roll20 and FG - and they control those under license anyway. Those VTTs are just not that capable -- they are not an alternative good to the VTT that WotC plans to sell.

But Foundry VTT IS capable of those things. It's capable of them RIGHT NOW. There is a 3d suite of add-on modules sold via a patreon by theripper93. It supports 3d in Foundry. There are similarly, a suite of animations for Foundry VTT by a pair of French brothers, Jules and Ben, that have amassed quite a collection of animations over the past 2 years. The magic missile which follows and hits the target? That's Foundry's Spell animations. It does a whole crap-ton more than that, too.

They don't want you to have that eye candy unless you buy it from them. THAT is why we are here, it's why we've been here all along. They don't want people to have that option to play with that eye candy for FREE, they want you to have to pay a monthly subscription for that.

It's akin to WotC complaining that my minis are painted too well, my 3d terrain on the tabletop is too slick and immersive, my maps are too good, my music and sound FXs are too good, my weather, fog, and lighting effects in Rime of the Frostmaiden are too good. It's all too good. Only they should be able to make something that looks that good - so they can charge me for it (and lots of other people, too).

At its heart, this is about Foundry VTT, because it's too good -- and trying to stop a fork of 5e so that WotC does not end up competing with a version of D&D all over again. They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

There are (at least) two commercial concerns at play here. The first you have touched on - other-VTT vs DnDBeyond-VTT competition. A second - that they expressly call attention to - is (attempting to draw) a line between VTT and "video game". That impacts not solely their VTT revenues, but their video game revenues.

As controllers of all that which everyone agrees is their IP, Hasbro don't have to extend a license to a VTT owner who doesn't agree to stay within whatever arbitrary boundaries they set. This isn't the philosophical question of what a VTT is and what a video game is (which I think imponderable), but that if you want a license from Hasbro to IP they claim ownership of, such as Magic Missile and Owlbear, then they want to exclude some techniques that they think would blur the lines between their VTT licences and their video game licences.

One might feel that it is the competition between other VTTs and DnDBeyond that is most material here. To know if that is true, I would need to know the revenue (to Hasbro) from VTT licences. However, I would guess that revenue is small enough that it is commercially feasible to just cut it completely. Additionally, things like dynamic illustration of Magic Missiles fall into a category I would call "gold-plating" which is to say that it seeks to differentiate through raising the quality bar of existing features, which historically has always favoured the company with the deepest pockets. (They can better afford to invest in gold-plating, and they earn more from doing so.)

Thus, preventing competition probably isn't really their aim. I think it is genuinely to draw a line between VTT licences and video game licences. The burr is the imponderability of the ontological distinction between VTT and video game. For example, the difference between what looks like a missile streak and what looks like an owlbear token is at its most fundamental, coordinate update rate. Both may be lit. Both, perforce, can be moved over the map. Depending on the rendering tools, both could well be texture-mapped 3D models. When I look at a "video game" like Gloomhaven (on Steam) that doesn't seem so far from a VTT to me (it might be trivial, in fact, to create a VTT for a Gloomhaven RPG based on what they already have implemented.) My view would probably be that VTTs are a subset of videogame. Certainly, I do not think the crucial or most plausible differentiator is whether it has/has not animation, dynamic lighting, particle effects etc, or even physics, collision detection and such like. And as has been discussed, in future the distinction might not even be that it has a human DM, or that all players are human.

Anyway, I wanted to present this food for thought and see what others might think. To me, there are two interesting questions in play: 1) what are they really trying to achieve, and 2) how foreseeably effective - and fair minded - is their approach to achieving it? Given one's answer to 1), what might be a better approach?

 

[treps]

Do you mean "does not include any WotC SRD content in it, but contains OGC that is derived from WotC SRD content" (eg perhaps some 3PP PF supplements)?

Or do you mean "is part of an ecosystem of OGC completely separate from the WotD SRC" (eg Mongoose Traveller or Evil Hat Fate)?

Both cases would be interesting !

 

[pemerton]

Question for the lawyers - If a company uses OGL 1.0a and does NOT include any WotC SRD content in it, would WotC have any grounds to sue?

Do you mean "does not include any WotC SRD content in it, but contains OGC that is derived from WotC SRD content" (eg perhaps some 3PP PF supplements)?

Or do you mean "is part of an ecosystem of OGC completely separate from the WotD SRC" (eg Mongoose Traveller or Evil Hat Fate)?

Both cases would be interesting !

First case: it is possible that use of the derived material, in the absence of a licence, could make a publisher liable for infringing WotC's copyright.

Second case: WotC has no contractual relationship to either licensor or licensee. But those two parties have promised one another, under certain circumstances, to reproduce the text of the OGL v 1.0a, over which WotC claims copyright. So fulfilling their contractual obligations to one another may oblige them to infringe WotC's copyright. But there are probably arguments available that they enjoy some sort of express or implicit permission from WotC to reproduce the text of the OGL v 1.0a (eg based on WotC's conduct encouraging other parties to join the open RPG movement).

 

[pemerton]

They say 1.0a remains valid for already published material. But 1.0a both allows and requires the licensee to offer the same agreement (OGL 1.0a) for sublicensing. And it expressly forbids modifying its own terms. If any instance of 1.0a remains valid, then both those provisions would remain in force.

Can anyone versed in legal matters see any way that Wizards could legally prevent sublicensing from, say, d20srd.org? Or are they now relying entirely on fear and the cost of litigation?

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

I don't think the the argument suggested in that post is necessarily strong. I don't think it's absurd, either.

 

[pemerton]

4. Section 7(b)(i) allows WOTC to terminate OGL 1.2 with a licensee without any notice or opportunity to cure or notice if the licensee's works include material that is "harmful, discriminatory, illegal, obscene, or harassing," or the licensee "engage
in conduct that is harmful, discriminatory, illegal, obscene, or harassing." WOTC has the "sole right to decide what conduct or content is hateful," and the licensee agrees not to challenge any determination.

I don't know how good faith or similar doctrines work in US contract law. But my first thought when I looked at this was that while you can't contest a determination you might be able to contest the method whereby a determination was reached (eg that it was arbitrary or in bad faith) - there's a construction of "determination" where that would not be contesting the determination itself.

 

[OB1]

First case: it is possible that use of the derived material, in the absence of a licence, could make a publisher liable for infringing WotC's copyright.

Second case: WotC has no contractual relationship to either licensor or licensee. But those two parties have promised one another, under certain circumstances, to reproduce the text of the OGL v 1.0a, over which WotC claims copyright. So fulfilling their contractual obligations to one another may oblige them to infringe WotC's copyright. But there are probably arguments available that they enjoy some sort of express or implicit permission from WotC to reproduce the text of the OGL v 1.0a (eg based on WotC's conduct encouraging other parties to join the open RPG movement).

Thanks Permerton, I was especially interested in the second case.

 

[Matt Thomason]

Something I realised last night.
1.0a's viral nature didn't just provide a tidy mechanism for rolling all OGC creators into section 15 on a single license. It also meant your licensor(s) were the producers of the products you were using directly. If I understand correctly, you had no license with the upstream producers.

And this is where I need some clarification on the nature of viral licenses. By my understanding:

If I create my product using the Mongoose Pocket Player's Handbook, my OGL for that product is between me and Mongoose. Even though WotC IP is in there, WotC licensed their SRD to Mongoose, Mongoose then licensed their own content under their modified copy of the OGL and sublicensed the WotC content to me. There is no agreement formed directly between me and WotC.

1.2 does not work like this at all. It does not roll multiple sources into a single license, and makes no sublicensing provision. You only ever explicitly license your content out seperately to the 1.2 licence between you and WotC giving you access to their SRD. It is not viral, you do not sublicense the 1.2 content you are using. Under 1.2 you make no offer directly to the reader to issue them a license, except that which you may include seperately (e.g. by putting a CC license in your book or by using an OGL 1.0a-alike license to licence your Open Game Content)
It seems to me this was likely done specifically to prevent the sublicensing issue that currently exists under 1.0a, where a third party is sublicensing WotC content to people, with WotC having no power over that sublicense. It's obvious at this point that every single difference between 1.0a and 1.2 is to hand more control to WotC that they do not legally enjoy at the moment.

Now everyone has to go directly to WotC to get their 1.2 license that is explictly between them and WotC, and which explicitly only covers WotC content.