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I think that's a separate issue. You can accept an "unreasonable" offer. The question here is whether it's reasonable that your performance of the action operated as an acceptance of the offer. But this has gotten way outside my area of expertise, even as a proud dropout from the University of...

It does seem to me that sending these packets directly to the publisher wasn't just a matter of convenience for them. "We told them exactly what action would trigger acceptance, they knew it, they did the thing, and now they want to claim they weren't accepting the offer?"

Yeah, I can kind of see that from what I'm reading. It's not enough that I do the thing (e.g. fall asleep); I have to do the thing in a way that operates as a "return promise" for it to count as acceptance by performance.

Okay, I'm actually out here reading up on contracts, doctrine and practice, god help me, and from what I'm reading, the instance of acceptance by performance in 1.1 is rather different from your example, but I accept that this is likely the best answer y'all are going to give me. :D

Okay, whichever one of you is a lawyer, please explain why this doesn’t qualify as acceptance by performance under U.S. contract law.

That’s the thing: If everything else about it was great, you couldn’t put significant investment at stake under this term.

But can you become a party by publishing content from SRD 5.1?!? Damn lawyers, why won’t you answer this in English! 🤣

But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?

That’s what I thought at first, but the language appears to define any content not in the SRD 5.1 as Unlicensed Content. And any content that is present in 5.1 (e.g. a bunch of PF1) is Licensed Content.

I don't think it's asserting that prior OGC not in the SRD 5.1 is Product Identity, but it definitely suggests that if it's not in the 5.1 SRD, then it's Unlicensed Content, including [but not limited to] "what the old OGL referred to as 'Product Identity.'"

Looks like a fork up. Section IX is Warranties and Disclaimers.

It's definitely complex enough that 3PPs are going to need to lawyer up.

Yeah, but the automatic opt-in is only triggered if you publish Licensed Content in SRD 5.1. Still, the way it's written, Paizo certainly published content that is present in SRD 5.1, even if they didn't use SRD 5.1 when they published it. Oy.

Could be. Or maybe they figure Paizo is best equipped to fight them, so they're willing to leave that horse out the barn. Dunno.

It's certainly underhanded...I'm not sure if it's clever. Why didn't they include SRD 3 or SRD 3.5 while they were at it? Paizo doesn't use SRD 5, so they don't get auto-opted into the agreement? Or Wizards thinks they can follow a chain of derivative work back from 5 to 3.5 to 3? The...

@jgbrowning There was another excerpt from a Q&A document that was floating around here. I'm not going to go track it down, but to paraphrase, it said "What if I don't agree to OGL 1.1?" And the answer was, "No problem, you just won't be able to earn any revenue from SRD-based content after...

Even there, Wizards appears to claim that a publisher needn't sign 1.1 to agree to its terms. They only need to publish content based on SRD 5. "Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the...

I think it's two things: 1. It's clearly true if the licensee agrees to 1.1. 2. In both the license language and explicitly in the propaganda, Wizards is staking out the position that it's true whether or not a publisher agrees to 1.1. The consensus (not unanimous) by the lawyers here is that...

Out of my depth there. The above is a subsection of Section X, which features no "the licensee agrees" language.

I don't think there's any contradiction between the legal language and the comments. They both say OGL 1.0(a) is no longer an authorized agreement. The legal question is whether that only becomes true for someone who agrees to 1.1. But it's exceptionally clear what Wizards' position on that...