My thoughts on the new OGL v1.2 draft

[pemerton]

If one updates the OGL 1.0a on their product to OGL 1.2 then section 9 makes that acceptable.

OGL v 1.2, as released in draft form, is in my view not plausibly construed as an "updated version" as that phrase occurs in section 9 of the OGL v 1.0a. Thus, I don't think that anyone relying on the OGL v 1.0a is permitted to "update" to current draft v 1.2 - unless the only OGC in their work that is not theirs is WotC's, as I think we can take it that WotC have implicitly permitted that change by way of their notice of deauthorisation.

 

[Myrdin Potter]

Yeah. Real bad.

Also. Wait…so D&D as a whole made $100 million last year…and they bought D&D Beyond for $150 million. So was Beyond itself worth more than the D&D brand itself? That can’t be right.

D&D Beyond has solid subscription revenue and digital sales. Very scalable and Curse did all the initial software spending outlay while WoTC made license revenue at low risk. WoTC put the hammer down on competition on DMs Guild and then scooped it up when it was a proven success.

Most valuations are on EBITDA and once the basic running costs are covered, digital platforms make a lot compared to selling physical goods.

Otherwise, D&D is a solid business but dwarfed by MtG. The whole model is buy some books and play. And the DM buys most of the books. Really hard to scale. Very slow turnover of editions. Almost all the money is in the core books.

 

[Haplo781]

For instance, it says that "Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content." What is meant, in that sentence, by the verb "licensed"? What permissions are part of that licence?

Notably, the OGL allows for sublicensing, so deauthorization might not do jack-all if this language stands.

 

[Aspirinsmurf]

I don't know much about CC. What stops someone who releases work under CC subsequently retracting and refusing to enter into new licences?

The "viral" clause in the CC 3.0 is section 8(a): "Each time You Distribute or Publicly Perform the Work or a Collection, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License."

Notably though, the CC-BY isn’t "irrevocable" either, it’s just a perpetual, worldwide and royalty-free license under those terms.

The viral nature of the OGL 1.0(a) appears to have even stronger wording to me, but I might be missing some nuances. From section 9: "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."

Are you now prepared to argue that the CC is also dysfunctionally viral if someone revokes their offer?

For the past 23 years, everyone has assumed that Section 9 in the OGL 1.0(a) actually means what it says. If you’ve published any Open Game Content under the OGL, that content is added to the pool of Open Game Content that everyone can use under the terms of the license (old or new versions).

 

[pemerton]

I would find that more credible if this was not an apparent change of perception over time. That tells me either the earlier participants on WOTCs side were deluded or the current ones are lying or deluded. You can substitute "confused" for "deluded" in that sentence if you prefer, but I don't think that substitution substantially changes it.

Frankly, this is just bizarre. It's utterly routine for parties to contracts, or similar legal arrangements, to identify new possible constructions of their entitlements and powers under those contracts and try and exercise them.

Sometimes this is to try and wriggle out of things. Sometimes this is to try and get others to do new things. Sometimes it is "offensive", sometimes "defensive".

Courts as well as parties develop and change their understandings also. I probably can't mention the best-known US examples for board rules reasons, but I'm sure you've heard of some of them.

WotC had a view about the limits of its legal powers when it posted the FAQ. It now has a different view. It seems fairly clear that Dancy wanted a licence that would bind WotC in ways it now asserts it is not bound. Presumably his lawyers at the time thought they'd achieved that, and that WotC believed they had achieved that. Now WotC asserts differently. It may have been wrong then. It may be wrong now. There's no reason to suppose that it was lying, or self-deluded, or even confused (not all error is confusion), on either occasion.

You, of course, have a perspective given your profession and experience that I cannot share, but I will have to state that it would not be the first time I have seen a company get into a contract related process that even lawyers in the field considered pretty questionable.

I reiterate my view that talk of WotC lying, or being deceptive, adds little to the discussion. As far as the legal significance of the FAQ etc, here's the earliest post I know about that made on these forums. I posted it in mid-2008: GSL & SRD -- Comments, Questions, and Hopes

 

[Morrus]

Frankly, this is just bizarre. It's utterly routine for parties to contracts, or similar legal arrangements, to identify new possible constructions of their entitlements and powers under those contracts and try and exercise them.

Sometimes this is to try and wriggle out of things. Sometimes this is to try and get others to do new things. Sometimes it is "offensive", sometimes "defensive".

Courts as well as parties develop and change their understandings also. I probably can't mention the best-known US examples for board rules reasons, but I'm sure you've heard of some of them.

WotC had a view about the limits of its legal powers when it posted the FAQ. It now has a different view. It seems fairly clear that Dancy wanted a licence that would bind WotC in ways it now asserts it is not bound. Presumably his lawyers at the time thought they'd achieved that, and that WotC believed they had achieved that. Now WotC asserts differently. It may have been wrong then. It may be wrong now. There's no reason to suppose that it was lying, or self-deluded, or even confused (not all error is confusion), on either occasion.

I reiterate my view that talk of WotC lying, or being deceptive, adds little to the discussion. As far as the legal significance of the FAQ etc, here's the earliest post I know about that made on these forums. I posted it in mid-2008: GSL & SRD -- Comments, Questions, and Hopes

Sure, but it speaks to trust, good faith, and the reliability of WotC as a partner.

 

[pemerton]

Are you now prepared to argue that the CC is also dysfunctionally viral if someone revokes their offer?

As I said, I don't know how CC works, or purports to work. I don't even know its contractual in its operation.

 

[pemerton]

Sure, but it speaks to trust, good faith, and the reliability of WotC as a partner.

Sure. As I said, I think I was the first person to post on your boards about WotC perhaps being estopped by its post-contractual representations (in July 2008).

 

[Aspirinsmurf]

As I said, I don't know how CC works, or purports to work. I don't even know its contractual in its operation.

Here's the text of the CC-BY, the version that WotC is proposing to use for some of its content: https://creativecommons.org/licenses/by/3.0/legalcode.txt

It's designed to effectively put works irrevocably into the public domain, worldwide. In consideration, you will always get credit as specified. At least, I think that's meant to be the "peppercorn".

 

[mamba]

Right. Magic is the majority of that money for WotC but I don’t know if we have solid numbers. Anyone dig through the available info?

there is no reliable info, afaik D&D is about 150M of the 1B, I'd adjust accordingly for the 1.3B of last year