My thoughts on the new OGL v1.2 draft

[tomBitonti]

2. The License: This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.

3.Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this 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.​

Additional text omitted.

"Any" open content seems to make section 2 apply to specific Open Game Content which is present in a new product. Section 2 seems to be how new content becomes Open Game Content.

"The" Open Game Content, from section 3, parses badly. Use can be thought of as incremental (using specific parts of the overall Corpus of OGC), or can be thought of more coarsely. That is, use of any portion of the OGC is spoken of as a use of the OGC as a whole. For section 3, I don't think this matters: Whether you have used a specific part of the OGC, or have used "The OGC", either way of parsing reaches the same conclusion, which is to indicate your acceptance of the license.

(Note: I have a particular, independent problem with section 3, in that it seems unlikely that any simple "use" of OGC indicates anything with regards to legal / formal acceptance of the license. The definition of "Use" from section 1g doesn't add very much.)

For section 5, because of the text Contributors ... "grant you a" ... "license with the exact terms of this license" ... to use the Open Game Content, it would seem that the license is from all contributors to date, with the license applying to all current Open Game Content. I can see this could also mean that each contribute grants a license which applies to the subset which is their specific addition to the Open Game Content.

(Note: I have another, independent problem with section 5, which is that I don't understand the precise legal meaning of "license with the exact terms of this License". That seems to imply that there is a distinct license (although the terms are exactly the same). Then, how does withdrawing the initial license affect the distinct license granted by section 5? If the section 5 license is between all contributors to each new contributor, can one contributor withdraw that license? Can one contributor remove their contributed OGC?)

(Note also: The distinct license which is created by section 5 seems to have a direction problem: A license is created for each new contributor at the point in time that they use this license. There doesn't seem to be a license given to prior contributors to use the newly contributed OGC.)

TomB

 

[pemerton]

"Any" open content seems to make section 2 apply to specific Open Game Content which is present in a new product. Section 2 seems to be how new content becomes Open Game Content.

The purpose of section 2 is to identify the elements/components of a work which are the subject matter of the offer set out in section 3, and are the subject matter of the grant of licence set out in section 4. Whether those two subject matters are the same or not is the question I address in the post that you quoted.

"The" Open Game Content, from section 3, parses badly. Use can be thought of as incremental (using specific parts of the overall Corpus of OGC), or can be thought of more coarsely. That is, use of any portion of the OGC is spoken of as a use of the OGC as a whole. For section 3, I don't think this matters: Whether you have used a specific part of the OGC, or have used "The OGC", either way of parsing reaches the same conclusion, which is to indicate your acceptance of the license.

It's clear that you don't need to use all of the offered OGC in order to accept the licence. But as per my post, there is a question as to whether or not the subject matter of the grant of licence is confined to the OGC that is used, or rather encompasses all the OGC in the work that is the subject-matter of the offer.

I have a particular, independent problem with section 3, in that it seems unlikely that any simple "use" of OGC indicates anything with regards to legal / formal acceptance of the license. The definition of "Use" from section 1g doesn't add very much.

I don't understand what your problem is. The use of OGC, with the intention to enter into the contract in virtue of that use, is key to acceptance.

For section 5, because of the text Contributors ... "grant you a" ... "license with the exact terms of this license" ... to use the Open Game Content, it would seem that the license is from all contributors to date, with the license applying to all current Open Game Content. I can see this could also mean that each contribute grants a license which applies to the subset which is their specific addition to the Open Game Content.

I think by "5" you mean "4".

Given that each contributor is the one with authority to license their OGC (in virtue of their copyright in it, or authority in respect of that copyright: see section 5), as well as to sub-license others' OGC (as per the meaning of "Use" and "Distributed"), it seems pretty clear to me that your second - distributed - reading is the correct one. For instance, if publisher A enters into the license with WotC and publishes a work that contains WotC's OGC X as well as A's OGC Y, and then B does likewise and publishes a work that contains X and also their own OGC Z, and then C goes on to publish a work that likewise contains X and Z, C must name WotC and B in their section 15 statement. They are licensed in respect of two Contributors - WotC and B. But they have no contract with, and no licence from, A.

I have another, independent problem with section 5, which is that I don't understand the precise legal meaning of "license with the exact terms of this License". That seems to imply that there is a distinct license (although the terms are exactly the same).

As per my previous paragraph, this is how the OGL works. It is intended to build up a network of interrelated contracts between publishers/contributors, based on one another's use of each other's OGC.

The distinct license which is created by section 5 seems to have a direction problem: A license is created for each new contributor at the point in time that they use this license. There doesn't seem to be a license given to prior contributors to use the newly contributed OGC.

Continuing with my example, let's suppose that C publishes a work that contains not only WotC's OGC X and B's OGC Z, but also C's own OGC Q.

If A wishes to publish a work containing Q (or material derived from Q) they must enter into a licence agreement with C. They do this by (i) using Q and (ii) including C in their section 15 statement.

Then, how does withdrawing the initial license affect the distinct license granted by section 5? If the section 5 license is between all contributors to each new contributor, can one contributor withdraw that license? Can one contributor remove their contributed OGC?)

There is no power that I can see for any party to withdraw any license that they enter into.

WotC has the power to withdraw its offer. In my post to which you replied, I suggested various ways that might affect the subject matter of the licence that WotC has granted. Other contributors are contractually obliged to keep their offers on foot (as per sections 2 and 4).

 

[tomBitonti]

I don't understand what your problem is. The use of OGC, with the intention to enter into the contract in virtue of that use, is key to acceptance.

It just seems an oddly ambiguous thing to put in a contract. Absent a specific action, knowing intent is mind reading. This is important in writing and in implementing software, which is my background, as computers cannot read the user's mind to know their intent. A computer must rely on a specific action to indicate intent. Likewise, I presume that legally, intent is generally inferred from specific actions. I expect that a well written contract would rely on clear and explicit actions to convey intent, and that there are clear guidelines of how to infer intent in contract law.

I agree that in practice, one who wishes to use the license will take the steps of attaching the license, &etc, and that those actions convey clear intent.

I think by "5" you mean "4".

Yeah.

Given that each contributor is the one with authority to license their OGC (in virtue of their copyright in it, or authority in respect of that copyright: see section 5), as well as to sub-license others' OGC (as per the meaning of "Use" and "Distributed"), it seems pretty clear to me that your second - distributed - reading is the correct one. For instance, if publisher A enters into the license with WotC and publishes a work that contains WotC's OGC X as well as A's OGC Y, and then B does likewise and publishes a work that contains X and also their own OGC Z, and then C goes on to publish a work that likewise contains X and Z, C must name WotC and B in their section 15 statement. They are licensed in respect of two Contributors - WotC and B. But they have no contract with, and no licence from, A.

Except, even the awarding of licenses for use of specific parts of OGC requires contributor authority. Except in scale, how is having all OGC contributors grant a license to the entire OGC different? It seems that by accepting the license, each contributor agrees to enable the grant of new licenses of individually contributed OGC.

Even if the licenses are to individual parts, doesn't WotC also issue a new license, as one of the OGC contributors?

Then, I still get tangled up here in that the section grants a new license. As a different license (with the same terms), is this duplicate license from WotC an authorized license? It seems "authorized" is an external attribute of the license. That is, "authorized" as a property is a label externally attached to the license. Then, that label is not a term of the license and is not a property of the duplicate licenses.

TomB

 

[Aspirinsmurf]

I think it's perfectly clear that the words "any authorized license" just means that you can use whatever version of it you want. Section 9 gives Wizards or its designated agents the right to make new versions. If that happens, you can either update your own license, or you can keep using the old one. You don't need permission from every other contributor if you're updating the license, since they've already agreed to this.

So, any open game content I've released under the OGL 1.0(a) could be incorporated into an OGL 1.2 product. And any OGL 1.2 open game content can be incorporated into an OGL 1.0 product. Of course, the proposed OGL 1.2 doesn't provide an actual mechanism to create any open game content, so that latter point is moot.

This is rather obviously what this is intended to mean, and it's not such an unusual thing for copyleft licenses. It's also what WotC have been telling us in their FAQ and what Ryan Dancey told people back in the day.

 

[darjr]

 

[pemerton]

It just seems an oddly ambiguous thing to put in a contract.

I don't think so. It's a well-established mode of contract formation in the common law: Carlill v Carbolic Smoke Ball Co - Wikipedia

Absent a specific action, knowing intent is mind reading

In legal reasoning, there are many methodologies for establishing intention, depending on the particular legal question being addressed.

even the awarding of licenses for use of specific parts of OGC requires contributor authority. Except in scale, how is having all OGC contributors grant a license to the entire OGC different? It seems that by accepting the license, each contributor agrees to enable the grant of new licenses of individually contributed OGC.

"Agrees to enable to grant" is (i) not a synonym of "grants" and (ii) is not a technical legal notion.

In my post to which your replied I set out a technical legal analysis: each contributor (other than WotC) is contractually bound to offer a licence agreement on the terms set out in the OGL; and a party who takes up that offer (by using the offered OGC and thereby accepting the offer) both becomes bound to make an offer in the same terms, and is licensed to use the OGC including by licensing it to other parties. (These are the sub-licences that everyone is talking about.)

Even if the licenses are to individual parts, doesn't WotC also issue a new license, as one of the OGC contributors?

What do you mean by "issue"?

In my example in the post you quoted, WotC licenses X to B, who in turn licenses both X and Z to C. C enjoys a licence to use WotC's OGC X but that licence was not issued directly by WotC. Indeed, C may know nothing at all about WotC except that they are referenced in B's work (ie in the copyright statemen of the OGL, in section 9 of the licence, and in B's section 15 declaration). C's licence is granted by B, who have been authorised by WotC to license WotC's OGC (because B is licensed to "Use" that OGC, and "Use" includes "Distribute" and "Distribute" includes "license"). That is why it is being descibed as sub-licence.

As a different license (with the same terms), is this duplicate license from WotC an authorized license? It seems "authorized" is an external attribute of the license. That is, "authorized" as a property is a label externally attached to the license. Then, that label is not a term of the license and is not a property of the duplicate licenses.

"Authorized" is likewise not a technical term.

The only place in which that phrase appears, in the text of the OGL, is in section 9, which refers to "authorized versions" of the licence. The phrase appears in a sentence immediately following this sentence: "Wizards or its designated Agents may publish updated versions of this License." And the phrase is simply a shorthand way of referring to those updated versions published with appropriate authority ie by WotC or its agent.

If what you are asking is "Does B have permission to sub-license X to C?", then the answer depends. Everyone, including WotC, agrees that up until now the answer is Yes. Because that power is conferred by B's licence agreement with WotC, as I have described in this and my previous post.

Once WotC declares that it is no longer offering to license its SRD on the terms set out in the OGL v 1.0a (which it appears to be getting ready to do, based on the various documents released over the past few weeks), then there is a degree of legal uncertainty.

Some people appear to think that WotC enjoys a power under section 9 to unilaterally revoke all licences granted by it on the terms set out in any version of the licence that it has published. I don't think that they do enjoy such a power, even if one confines the analysis to the licence text. The only time I'm aware of that WotC appear to have adverted to such a power is in a leaked draft of an FAQ: OGL - Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

As I posted upthread, in the post that prompted this exchange between us, I think there is a textual argument available to WotC that if they withdraw their offer to license their SRD on the terms of the OGL v 1.0a, then while all the contracts they and their sub-licensors have entered into remain on foot, the subject-matter of the licences granted evaporates. But that is not the only possible interpretation of the OGL. Hence, as I said, there is legal uncertainty.

 

[pemerton]

I think it's perfectly clear that the words "any authorized license" just means that you can use whatever version of it you want. Section 9 gives Wizards or its designated agents the right to make new versions. If that happens, you can either update your own license, or you can keep using the old one. You don't need permission from every other contributor if you're updating the license, since they've already agreed to this.

I agree.

So, any open game content I've released under the OGL 1.0(a) could be incorporated into an OGL 1.2 product.

I have doubts about this, though. I think there are reasonably strong arguments that OGL v 1.2 (at least in its current draft form) is not a "version" of the OGL v 1.0/1.0a.

What counts as a "version" is itself a matter of contractual interpretation; it's not settled just by WotC sticking a label onto a new promulgated licence text.

 

[Aspirinsmurf]

I have doubts about this, though. I think there are reasonably strong arguments that OGL v 1.2 (at least in its current draft form) is not a "version" of the OGL v 1.0/1.0a.

What counts as a "version" is itself a matter of contractual interpretation; it's not settled just by WotC sticking a label onto a new promulgated licence text.

Indeed. But if the new license wasn't dysfunctional as an update, I think this was the intended purpose. The wording "any authorized version" was intended to avoid the problem of splitting up the OGC between license versions.

 

[pemerton]

Indeed. But if the new license wasn't dysfunctional as an update, I think this was the intended purpose. The wording "any authorized version" was intended to avoid the problem of splitting up the OGC between license versions.

I don't think WotC intended this current iteration of the OGL - whatever it ends up looking like - to be an update in the sense of section 9 of the OGL v 1.0/1.0a. It's always seemed pretty clear that, for them, the best outcome is that the current OGC ecology withers away.

 

[Aspirinsmurf]

I don't think WotC intended this current iteration of the OGL - whatever it ends up looking like - to be an update in the sense of section 9 of the OGL v 1.0/1.0a. It's always seemed pretty clear that, for them, the best outcome is that the current OGC ecology withers away.

Thy should really call it something else, yeah. But they're dead set on sowing confusion here, so I'm not optimistic that they ever will.