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

[MNblockhead]

But, unless they were claiming that every product you produced violated the terms, they wouldn’t be ending your company. Just one product.

Or did I misunderstand and invoking the community standards clause causes all of your products to no longer be licensed.

I don't think you are misunderstanding section 6f of the proposed new OGL, but you may be underestimating the effect that killing one product can have on a company.

The problem is that you can't "fix" the "problem" until after you create and publish it. If it is an expensive print product, you may find yourself with a warehouse of product you can no longer legally sell. Even established third-party publishers may have a problem absorbing that loss. Much worse if you are a new creator who successfully Kickstarted your new cyberpunk D&D game of anti-capitalist orcs fighting the government in a dystopian future.

 

[FrogReaver]

But wouldn’t the market correct for this? If WotC frivolously forces someone to pull their products, there will be a pretty immediate hue and cry.

I get that borderline cases might exist, but this is not really a blank check.

I mean wouldn’t the simplest solution, if you wanted to publish something that was walking the line, be to just ask WotC before you publish?

So, if you thought it was walking the line then yes. What happens if you think it was perfectly fine and WOTC thinks it's past the line?

 

[Hussar]

It is not limited to products. It is not limited to future behaviour. The consequences are not limited to the offending product.

...or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful...

You having posted a nip-slip on Twitter a decade ago is grounds for you losing access to the license for all products past and future.

Have fun pulping that inventory...

I don’t think this is accurate but I’ll not argue the point since I’ve been so very wrong about a lot of things.

 

[Thomas Shey]

But wouldn’t the market correct for this? If WotC frivolously forces someone to pull their products, there will be a pretty immediate hue and cry.

How much as a creator basing your buisness on your continued ability to produce products for your line do you want to count on them being impeded by this? Especially since the most attractive targets to use this on would be the most successful?

It's playing Russian roulette with a gun you don't know how many bullets are in the cylinder. And where the person loading it may well not have your best interest in heart.

I get that borderline cases might exist, but this is not really a blank check.

I mean wouldn’t the simplest solution, if you wanted to publish something that was walking the line, be to just ask WotC before you publish?

But that's it. It doesn't have to have a damn thing to do with actual moral issues. It can just be an excuse to get someone out of the subsidiary market you've found inconvenient at any point in time. You're effectively offering someone the opportunity to sink a potential competitor at-will.

 

[Thomas Shey]

I don't believe this is so straightforward. As another poster pointed out, exercise of that moral clause - especially where commercial interests are at stake - cannot be wielded for other than moral purposes. For example, suppose I publish works well within the gamut of what other creators have published, and Hasbro wield their moral clause against me because, let's suppose I suspect, my commercial success threatens theirs. I will resist not the clause itself, but their wielding of it in this case.

The assumption that in a commercial context a moral clause can be wielded to pull the plug on competitors seems inaccurate to me.

Except they don't even have to explain what the problem is.
The black-box element of the clause makes the tool virtually unassailable other than by suing to claim the clause itself is not legitimate as constructed. Again, if you're a creator trying put together a business here, why in the name of the gods would you want to potentially put yourself in a position to have to try and do that? At that point you're setting yourself up to have to fight for your professional life on your own dime.

 

[Thomas Shey]

I don't think you are misunderstanding section 6f of the proposed new OGL, but you may be underestimating the effect that killing one product can have on a company.

The problem is that you can't "fix" the "problem" until after you create and publish it. If it is an expensive print product, you may find yourself with a warehouse of product you can no longer legally sell. Even established third-party publishers may have a problem absorbing that loss. Much worse if you are a new creator who successfully Kickstarted your new cyberpunk D&D game of anti-capitalist orcs fighting the government in a dystopian future.

And let's not forget, they're not even obliged to tell you what the problem is.

 

[Enrahim2]

One issue I haven't seen touched upon is the issue of contractual misrepresentation? I just stumbled upon the concept online, and it might seem relevant?

The contract I believe have been demonsratably been presented as a safe fundation for open source style investments. If this is found to be false due to wizards undisclosed ability to retroactively close down certain material presented as "open", that appear to be matching common definitions of misrepresentation?

I guess this topic might not be very relevant for the time being, as it appear most likely to be innocent misrepresentation, and from that as far as I can see the common outcome would be cancellation of contract. I hope noone currently would want that, and I guess the termination clause protects against any potential cascading effects of any such cancellation? (like if paizo decide to cancel their pf2 licencing trough this mechanism after confirming they didnt need it - that wouldn't affect third parties licensing pf2 content for their works)

Maybe a bit more juicy spin on this might be if the severity of misrepresentation could somehow be considered higher for any ogl1.0a contracts entered after there are evidence wizards started contemplating the posibility of "deauthorization", and public disclosure of that fact (for i stance for anything published by a someone not offered the NDA for the 1.1 version, before the first leak)? That appear to enable potential claims of damages with respect to the investments those publishers has put into their products relying on the license?

 

[SoonRaccoon]

Except they don't even have to explain what the problem is.
The black-box element of the clause makes the tool virtually unassailable other than by suing to claim the clause itself is not legitimate as constructed. Again, if you're a creator trying put together a business here, why in the name of the gods would you want to potentially put yourself in a position to have to try and do that? At that point you're setting yourself up to have to fight for your professional life on your own dime.

But if that clause is found to be not legitimate, you've just given them another way to cancel your license under 9(d).

 

[Thomas Shey]

But if that clause is found to be not legitimate, you've just given them another way to cancel your license under 9(d).

Just means you have to go to court ready to argue that clause is also illegitimate if the first one is (yes, I'm aware this complicates the likelihood of the case going your way, but that sort of multi-step booby-trapped contact is not exactly unknown, though judges don't always look on it with good favor).

But that's the overall point; that structure provides a single large way for this to blow up in your face if you sign onto it, and dealing with it if it does will be risky and not cost-free. The best you can say if it blew up in WOTC's face, it would be even a bigger problem for them.

But either way you're handling a piece of live ordnance, and you'd better have a good reason to do that.

 

[S'mon]

One issue I haven't seen touched upon is the issue of contractual misrepresentation? I just stumbled upon the concept online, and it might seem relevant?

The contract I believe have been demonsratably been presented as a safe fundation for open source style investments. If this is found to be false due to wizards undisclosed ability to retroactively close down certain material presented as "open", that appear to be matching common definitions of misrepresentation?

I guess this topic might not be very relevant for the time being, as it appear most likely to be innocent misrepresentation, and from that as far as I can see the common outcome would be cancellation of contract. I hope noone currently would want that, and I guess the termination clause protects against any potential cascading effects of any such cancellation? (like if paizo decide to cancel their pf2 licencing trough this mechanism after confirming they didnt need it - that wouldn't affect third parties licensing pf2 content for their works)

Maybe a bit more juicy spin on this might be if the severity of misrepresentation could somehow be considered higher for any ogl1.0a contracts entered after there are evidence wizards started contemplating the posibility of "deauthorization", and public disclosure of that fact (for i stance for anything published by a someone not offered the NDA for the 1.1 version, before the first leak)? That appear to enable potential claims of damages with respect to the investments those publishers has put into their products relying on the license?

I don't think Misrep applies as they represented the contract accurately for 21 years. They are lying now about what it says, but that seems to fall under Breach not Misrep.