Legal Discussion of OGL 1.2

[S'mon]

This thread is to discuss legal issues around OGL 1.2. I hope to attract many of the legal professionals that discussed the OGL 1.0(a) and OGL 2.0.

Thinking about it, to me the only issue that really matters is that WoTC are still purporting that they can stop people using the OGL 1.0 to share Open Game Content, destroying the existing 3PP ecosystem. So (perhaps) unfortunately I am not all that interested in analysing the OGL 1.2 draft. It feels like a bit of a waste of time.

Edit: Justin Alexander covers it well in these tweets (click on the link for the most important ones).

 

[Matt Thomason]

Thinking about it, to me the only issue that really matters is that WoTC are still purporting that they can stop people using the OGL 1.0 to share Open Game Content, destroying the existing 3PP ecosystem. So (perhaps) unfortunately I am not all that interested in analysing the OGL 1.2 draft. It feels like a bit of a waste of time.

Edit: Justin Alexander covers it well in these tweets

While I'm in a similar boat, I'm also making sure I keep an eye out for any other 1.2 pitfalls in the event they do fix the OGC-between-3PPs issue. I'd hate to pull the trigger on 1.2 just to realise there's a whole different set of traps waiting behind that one (and at this point, it's pretty obvious there are)

 

[pemerton]

Thinking about it, to me the only issue that really matters is that WoTC are still purporting that they can stop people using the OGL 1.0 to share Open Game Content, destroying the existing 3PP ecosystem.

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

I mention this mostly because I've read multiple posts on some of these threads that seem to think the opposite.

 

[Matt Thomason]

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

I mention this mostly because I've read multiple posts on some of these threads that seem to think the opposite.

I agree they don't claim it directly. They are however making claims that put together with the text of 1.2 have an uncomfortable level of implication.

1) They claim they are deauthorizing 1.0a. They do not specifically state "instances of 1.0a between us and you", but 1.0a as a whole. Their implication, despite me understanding they have no actual power to do so, is that nobody can form any further 1.0a agreements between themselves.

2) 1.2 is unsuitable for use as a drop-in for 1.0a if you are licensing multiple works from multiple sources outside of WotC. It does not contain the mechanisms for that unless you are able to use the 1.2 between you and WotC alongside the 1.0a between you and a 3PP. The very text of 1.2 cannot be used to form a workable license where WotC is not the licensor, and we do not have appear to have permission to modify 1.2 in the way we can with 1.0a's Section 15, nor to even change the preamble stating the license is between WotC and $party. 1.2 also does not confer any offer from us to the downstream reader, nor does it grant any sublicensing ability whatsoever. Nor does it provide for identification of Open Game Content and Product Identity.

3) If 1.0a is deauthorized between $3PP and ourselves, we therefore need to fall back on the clause in 1.0a allowing the use of any authorized license, but as mentioned in 2) we can't use 1.2 for that purpose without making an extra copy of it and modifying that heavily, which we have not been granted permission to do and which would turn it into a version that is no longer authorized.

Now, my view here is that if I want to use 1.2 alongside some Open Game Content by Paizo, and license my own work onwards I need to do the following:
a) have a 1.2 agreement between WotC and myself for the SRD
b) have a seperate 1.0a agreement between Paizo and myself for the Paizo OGC.
c) either include my OGC contribution in b) or add a third license to the mix to allow readers to license my part.

While I am confident WotC can legally do nothing about the inclusion of b), in their own words that license is deauthorized. I need to hear clearly from them that they only mean for OGL licenses where they are the licensor, and not those where other parties are the licensor. Currently they seem to be ignoring any request whatsoever for clarification on this, despite it being likely to be the biggest concern of most 3PPs.

 

[S'mon]

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

Yes, I'm primarily concerned with the D&D-derived ecosystem, which I think is likely the substantial majority of OGL licenced content. Everything with a 'sliver of SRD' (per Alexander) in it, and everything which even might have a sliver of SRD in it.

 

[Iosue]

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

I mention this mostly because I've read multiple posts on some of these threads that seem to think the opposite.

IANAL, but that’s what I’ve been thinking. But I suppose it’s a sauce for the goose kind of thing? Maybe WotC doesn’t care about non-WotC OGC, but the ostensible de-authorization opens users of that OGC to the threat of legal action from the respective creators of it? It seems highly unlikely, but perhaps the uncertainty alone is enough to destabilize the market.

 

[pemerton]

I agree they don't claim it directly. They are however making claims that put together with the text of 1.2 have an uncomfortable level of implication.

1) They claim they are deauthorizing 1.0a. They do not specifically state "instances of 1.0a between us and you", but 1.0a as a whole. Their implication, despite me understanding they have no actual power to do so, is that nobody can form any further 1.0a agreements between themselves.

I don't see that there is any such implication. WotC has not and does not claim to be able to control the terms on which other parties enter into contracts with one another.

You've probably read my posts that say people are reading the OGL as a statute. This is another example: people are treating WotC as a legislator who can govern contracts to which it is not a party by creating laws of general force. But WotC cannot do that, and has never claimed to do so. All its statements about the OGL v 1.0a have been about its offers to license and its licence agreements.

Frankly, I don't think WotC gives a toss about what Mongoose does with its game. Why would WotC care whether that ecosystem is licensed under the OGL or ORC or CC or any other licence?

If 1.0a is deauthorized between $3PP and ourselves, we therefore need to fall back on the clause in 1.0a allowing the use of any authorized license

I don't see how this can happen. WotC has never claimed this power as best I can see, as per just above in this post.

1.2 is unsuitable for use as a drop-in for 1.0a if you are licensing multiple works from multiple sources outside of WotC. It does not contain the mechanisms for that unless you are able to use the 1.2 between you and WotC alongside the 1.0a between you and a 3PP. The very text of 1.2 cannot be used to form a workable license where WotC is not the licensor, and we do not have appear to have permission to modify 1.2 in the way we can with 1.0a's Section 15, nor to even change the preamble stating the license is between WotC and $party. 1.2 also does not confer any offer from us to the downstream reader, nor does it grant any sublicensing ability whatsoever. Nor does it provide for identification of Open Game Content and Product Identity.

OGL v 1.2 isn't a viral licence in any form - agreed. (I posted an analysis of its non-viral character in one of the threads, and I think I pointed you to it.)

On the other hand, I don't see any obvious obstacle to publishing a work that includes WotC licensed content under OGL v 1.2 together with OGC that is licensed under the OGL v 1.0a and is not in any fashion connected to WotC's copyrighted OGC. (I wouldn't want to try and include any WotC-connected OGC - that would probably be a breach of the terms of OGL v 1.2.)

If you want to somehow combine or integrate the WotC licensed content and the other OGC it becomes trickier, depending on the details I would say.

Now, my view here is that if I want to use 1.2 alongside some Open Game Content by Paizo, and license my own work onwards I need to do the following:
a) have a 1.2 agreement between WotC and myself for the SRD
b) have a seperate 1.0a agreement between Paizo and myself for the Paizo OGC.
c) either include my OGC contribution in b) or add a third license to the mix to allow readers to license my part.

If your OGC includes content that means that distributing it might violate WotC's copyright, then as I posted above it becomes trickier. The details start to matter.

While I am confident WotC can legally do nothing about the inclusion of b), in their own words that license is deauthorized. I need to hear clearly from them that they only mean for OGL licenses where they are the licensor, and not those where other parties are the licensor. Currently they seem to be ignoring any request whatsoever for clarification on this, despite it being likely to be the biggest concern of most 3PPs.

Here's what seems to me to be the core of the notice of deauthorisation:

NOTICE OF DEAUTHORIZATION OF OGL 1.0a. The Open Game License 1.0a is no longer an authorized license. This
means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date).​

It seems pretty clear to me. They are talking about the licensing of their copyrighted work.

 

[pemerton]

Maybe WotC doesn’t care about non-WotC OGC, but the ostensible de-authorization opens users of that OGC to the threat of legal action from the respective creators of it?

On what basis?

I'm not seeing it.

perhaps the uncertainty alone is enough to destabilize the market.

The uncertainty seems to me to be the result of misinformation being spread by people who don't understand how private legal agreements work. I know that's a fairly blunt remark. But I keep reading posts asserting with dogmatic confidence propositions that are either obviously legally wrong, or at best legally uncertain.

The most common underpinning of the misinformation is the assumption that WotC is a legislator. It's not.

 

[Matt Thomason]

If you want to somehow combine or integrate the WotC licensed content and the other OGC it becomes trickier, depending on the details I would say.

If your OGC includes content that means that distributing it might violate WotC's copyright, then as I posted above it becomes trickier. The details start to matter.

Here's what seems to me to be the core of the notice of deauthorisation:

NOTICE OF DEAUTHORIZATION OF OGL 1.0a. The Open Game License 1.0a is no longer an authorized license. This​

means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date).​

It seems pretty clear to me. They are talking about the licensing of their copyrighted work.

Okay, I'd missed that "to publish SRD content". It'd be better if they said "to publish OUR SRD content", but reading it that way does carry the implication they are restricting that comment to their own content.

I agree with you 100% that they are unable to affect agreements between other parties. My worry was that they might try anyway. At this point it's hard for me to make an assumption WotC will continue to operate in good faith regarding the use of 1.0a.

But overall - you agree with my assessment that in order to combine SRD content licensed under 1.2 and non-SRD content licensed under 1.0a I will need to license those in seperate agreements with the relevant parties? The SRD under 1.2, and the non-SRD non-WotC content under the still valid between me and $publisher no matter what WotC say 1.0a?

(I wouldn't want to try and include any WotC-connected OGC - that would probably be a breach of the terms of OGL v 1.2.)

Now THIS sentence worries me
Would you consider a class by a 3PP that depends upon SRD mechanics "WotC-Connected OGC", or do you specifically mean WotC-OWNED OGC?

 

[Matt Thomason]

The most common underpinning of the misinformation is the assumption that WotC is a legislator. It's not.

I think the issue here is that we're afraid they may try and act like one anyway

I'm mostly happy that I have this OGL 1.2/1.0a mix nailed. My main concern is that WotC will not agree and will try and sue anyway, with the most likely result being me being unable to stand up to them and fight for my legal rights. It would be better for the entire 3PP community if WotC issue clear guidelines on how they expect 1.2 and 1.0a to be used together when there is also third-party 1.0a OGC in the mix, simply to ensure good faith between parties and no accidental misunderstandings.