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

[Maxperson]

Yes it does. The OGL makes them a licensee for all OGC by virtue of their distribution of OGC.

So you know better than the attorneys and law professors that have been talking about this?

 

[Aspirinsmurf]

Playing Devil's Advocate, or in this case Devil's Layman. As much as I hate the bad taste it leaves in my mouth to bring this argument:

The initial licensee (one working directly off the SRD) creates a derivative work from the Open Game Content within the SRD. This can be anything from writing a character class based upon the concepts and rules within the SRD to taking the entire SRD and converting it to HTML, Markdown, or other formats.
The resulting work is a derivative work created by the licensee, using the permissions granted by the license to do so, but the copyright for the derivative work only covers the additions or changes to the original work, not the original itself. (derivative work)
It would therefore appear to follow that the licensee only has the right to offer a license to their additions or changes (or rather, to offer their OGC to be combined in the license with other contributors offers.)

This appears to be backed up slightly by


Stating that you need the rights in the first place to contribute material as OGC, an indication that Your Contributions are considered at least here, separate to the OGC within the work as a whole.

Now, taking into account

read in conjunction with

and

At no point does the license mention the right for the licensee to sublicense any of the Used OGC. Instead, it seems to pass on the license offer from "the Contributors". Not making on their behalf, simply passing on the message that the Contributors have made offers - so if one or more are rescinding that offer, it's no longer available to accept.

This leaves the downstream licensee only able to "pass down" the OGC for which a valid offer still remains - that which any remaining Contributors own copyright to - their specific enhancements made in their derivative works - plus of course their own. Or in other words, the offer is made with big holes in it where OGC has been withdrawn.

I'm hoping here that as someone with zero actual legal knowledge, that I've missed something important and am horribly wrong.
My reading here, however, is in opposition to the intent and spirit of the offer that was communicated back in 2000. It's not the only way I can read it, but represents my attempt at making an interpretation favoring WotC.

I think you're essentially correct here, under what I believe are the most plausible interpretations of the various provisions.

However, the definition of Derivative Material isn't "derivative work" in the legal sense, i.e. content that's original but infringes on someone's else's copyright. It's actually "copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted." (Emphasis mine.)

So there's an argument to be made that even a verbatim copy of the SRD made by anyone else than WotC is actually Derivative Material.

 

[Aspirinsmurf]

So you know better than the attorneys and law professors that have been talking about this?

I think @pemerton has acknowledged that this interpretation is possible, if not plausible.

 

[FrogReaver]

So you know better than the attorneys and law professors that have been talking about this?

I’ve not seen any chime in on that, have you?

By the way - nice appeal to authority.

 

[FrogReaver]

I think @pemerton has acknowledged that this interpretation is possible, if not plausible.

I’ll take your word. Pemerton confuses me more than anyone else here.

 

[Maxperson]

Section 1c talks says that Distributing includes licensing.

I’m not sure that talks you all the way but it should serve as a starting point to reshape your argument.

Section 1: Definitions: (a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;

WotC owns those things with regard to everything in SRD 5.1. They are contributors.

Section 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.

You, not we. WotC wrote it. They do not call themselves "You."

Section 4: Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-‐‑free, non-‐exclusive license with the exact terms of this License to Use, the Open Game Content.

The Contributors(WotC) grant You(FrogReaver)... It does not say Contributors grant Contributors.

Section 5: Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

Section 5 Allows you to become a contributor for your original works. You are not a contributor to SRD 5.1.

All uses of "you" in the OGL fail to refer to WotC. WotC are only contributors with the possible exception of their use of original third party material in one of their products.

 

[Matt Thomason]

I think you're essentially correct here, under what I believe are the most plausible interpretations of the various provisions.

However, the definition of Derivative Material isn't "derivative work" in the legal sense, i.e. content that's original but infringes on someone's else's copyright. It's actually "copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted." (Emphasis mine.)

So there's an argument to be made that even a verbatim copy of the SRD made by anyone else than WotC is actually Derivative Material.

Ugh, I missed one of the obvious Capitalized Definitions! (Wait, no, that's a good thing, we don't want my argument to be right )

And yes, the argument I've been making myself through all of this is that once I create my Work (even if it's, as you say, a verbatim cut+paste), I'm licencing out that (which I created with permission), and the license is now between me and the next Licensee and cannot be affected by anyone upstream. I did miss the part about "Contributors" in that argument though, so I may have to rethink on where that fits.

 

[Maxperson]

I’ve not seen any chime in on that, have you?

Yep. @pemerton has.

By the way - nice appeal to authority.

At some point the authorities are correct. Especially since the law doesn't work the way you are portraying it. There's a reason why expert witnesses are allowed to testify in their areas of expertise, but you aren't.

If you read about Appeal to Authority by the way, you get something along these lines. I picked this from just one of the sources I looked at.

Exception: Be very careful not to confuse "deferring to an authority on the issue" with the appeal to authority fallacy. Remember, a fallacy is an error in reasoning. Dismissing the council of legitimate experts and authorities turns good skepticism into denialism. The appeal to authority is a fallacy in argumentation, but deferring to an authority is a reliable heuristic that we all use virtually every day on issues of relatively little importance. There is always a chance that any authority can be wrong, that’s why the critical thinker accepts facts provisionally. It is not at all unreasonable (or an error in reasoning) to accept information as provisionally true by credible authorities. Of course, the reasonableness is moderated by the claim being made (i.e., how extraordinary, how important) and the authority (how credible, how relevant to the claim).

 

[mamba]

By the way - nice appeal to authority.

yeah, I do not mind it. This is another word for expert here, and you know what makes people experts? Actually knowing the stuff they are talking about...

I don't know about you but I prefer having experts chime in over pretty much everyone else.

If I have a legal problem, I ask my lawyer.
If I feel sick, I ask my doctor.
If my car doesn't start, I ask a mechanic..

You are free to ask your lawyer about the car, the doctor about the legal issue and the mechanic about your symptoms, to avoid appealing to authority, but I do not recommend it

 

[FrogReaver]

Section 1: Definitions: (a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;

WotC owns those things with regard to everything in SRD 5.1. They are contributors.

Section 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.

You, not we. WotC wrote it. They do not call themselves "You."

Section 4: Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-‐‑free, non-‐exclusive license with the exact terms of this License to Use, the Open Game Content.

The Contributors(WotC) grant You(FrogReaver)... It does not say Contributors grant Contributors.

Section 5: Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

Section 5 Allows you to become a contributor for your original works. You are not a contributor to SRD 5.1.

All uses of "you" in the OGL fail to refer to WotC. WotC are only contributors with the possible exception of their use of original third party material in one of their products.

‘You’ refers to the Licensee in terms of this agreement - defined in section 1h.

Nothing about the licenses definition of ‘you’ precludes WOTC.

The argument I make is that all contributors are also licensees.