An Unexpected Victory, Unconditional Surrender, and Unfinished Business.

[pemerton]

A CC license can't be withdrawn. That's the entire point.

Have you read the CC FAQ?

Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms.​

That ostensible power to continue to redistribute it flows, as best I can tell, from the "automatic offer" provision in section 2.a.5.A. I haven't done a comprehensive literature review, but what I've found so far only considers the "automatic offer" element from the perspective of a recipient; I haven't seen anyone consider how an "automatic offer" survives a withdrawal by the upstream licensor of their offer.

The only way an individual author/company could be stopped from using this license is if they do not give the proper attribution as per the CC-BY-4.0 contract terms. And that is an easy fix.
No morality clauses, no medium restrictions, nothing.

None of this is different from the OGL v 1.0a (except that also imposes Product Identity as well as attribution requirements). I mean, some of the minutiae is a bit different, but the fundamentals are not.

If WotC stops offering to license the SRD under the CC, and asserts that in virtue of that change of mind no one any longer is the recipient of an "automatic offer", as far as I can see we will be in the same place as when they asserted that henceforth no one would be able to exercise the rights and powers they enjoy under the OGL v 1.0/1.0a.

If you know of literature or cases that have considered what happens to the "automatic offer" provision when the upstream offer is withdrawn, I'd be interested to read them!

 

[Haplo781]

Have you read the CC FAQ?

Once something has been published under a CC license, licensees may continue using it according to the license terms for the duration of applicable copyright and similar rights. As a licensor, you may stop distributing under the CC license at any time, but anyone who has access to a copy of the material may continue to redistribute it under the CC license terms.​

That ostensible power to continue to redistribute it flows, as best I can tell, from the "automatic offer" provision in section 2.a.5.A. I haven't done a comprehensive literature review, but what I've found so far only considers the "automatic offer" element from the perspective of a recipient; I haven't seen anyone consider how an "automatic offer" survives a withdrawal by the upstream licensor of their offer.

None of this is different from the OGL v 1.0a (except that also imposes Product Identity as well as attribution requirements). I mean, some of the minutiae is a bit different, but the fundamentals are not.

If WotC stops offering to license the SRD under the CC, and asserts that in virtue of that change of mind no one any longer is the recipient of an "automatic offer", as far as I can see we will be in the same place as when they asserted that henceforth no one would be able to exercise the rights and powers they enjoy under the OGL v 1.0/1.0a.

If you know of literature or cases that have considered what happens to the "automatic offer" provision when the upstream offer is withdrawn, I'd be interested to read them!

Frequently Asked Questions - Creative Commons

creativecommons.org

The CC licenses are irrevocable. This means that once you receive material under a CC license, you will always have the right to use it under those license terms, even if the licensor changes his or her mind and stops distributing under the CC license terms. Of course, you may choose to respect the licensor’s wishes and stop using the work.

 

[Maxperson]

@Maxperson, and I could be hit by a meteor, directly on my head. Anything is "possible."

I've known people who were afraid to fly on an airplane, but will get into a car without thinking twice. That despite more people dying in the US alone than died in all accidents worldwide combined since approximately 1990.

WotC engaging in that sort of behavior will drive many small providers away out of fear.

Sure WotC could stop distributing under CC-BY 4.0 but they have no legal leg to stand on if someone continues to use the material. If WotC even tried there would be so much blow back from beyond our little pond in the TTRPG world that it would make what just happened with the OGL look like the most brilliant idea, ever. I would hate to be in charge of the crowd-sourced money campaign that would spring up for their legal defense.

I agree that it would be stupid. WotC isn't a stranger to doing dumb things. This wasn't the first. It was just the worst.

 

[robconley]

To be honest, the vibe I get from reading posts on this forum is that identification with the D&D brand and the company that owns is the predominant orientation in RPGing.

That is accurate.

Threads about the rankings of WotC-published books on Amazon; posts that reply to discussions of non-D&D approaches to RPGing that reference sales volumes of various indie RPGs compared to D&D; posts in the General RPG sub-forum that nevertheless treat D&D and D&D-style RPGing as normative for RPGing in general. There seems to me to be an almost overwhelming tendency to use D&D as a yardstick and baseline for thinking about RPGing.

Which is also true.

The misconception here is that my goals are concerned with the relative popularity of various tabletop roleplaying brands and systems. They are not. The creative independence I focus on applies to everybody including leading brand D&D and its owner Wizards of the Coast. If that means that folks continue to focus their interest and creative interest on supporting the latest edition of D&D then so be it. And Wizards can enjoy the fact that they won their business honestly rather than through coercion. It wasn't so long ago that they understood that.

 

[pemerton]

Frequently Asked Questions - Creative Commons

creativecommons.org

Yes. I quoted it. License agreements, once entered into, are irrevocable. (The same is true of the OGL - or at least I'm yet to see a strong legal argument to the contrary.)

But as the FAQ states, and as I quoted, the offer to license by WotC is not irrevocable. It's a gratuitous offer.

The device that the OGL uses to try and ensure that if WotC does this, the ecology remains alive, is to give all downstream licensees a power to keep licensing the licensed content, even if WotC is no longer doing so directly. It's an open question whether this mechanism works, but it probably does, and is strongly reinforced in that respect by representations made by WotC in the past.

The device that the CC licence uses to try and ensure that if WotC withdraws its offer, the ecology remains alive, is to stipulate that all downstream recipients automatically receive an offer whenever a downstream licensee distributes the licensed material. In my view it is also an open question whether this mechanism works. In a recent post on the Lawyer-PSA thread I posted and briefly analysed some academic writings that consider the question; as I posted not far upthread in this thread, I haven't done a comprehensive literature review and so maybe there is a definitive answer that I'm not aware of. Has there ever been a case of a CC licensor withdrawing their offer, and then proceeding against a user of their IP whose only claim to enjoy a licence depended on taking up a post-withdrawal "automatic offer"?

At least based on my current knowledge of Australian law, I think the OGL's mechanism, supplemented by the facts of WotC's representations, is more reliable than the CC licence's mechanism. If someone has an argument that it's less reliable I'd be very interested in hearing it.

 

[robconley]

Yep. But ONLY because WotC took a shot at 5e. The older stuff was purely collateral damage to that shot. Now that shot is useless to take as it can't do anything, so the older stuff has nothing to be collateral damage to.

No the deauthorization of the OGL 1.0a meant one of two things.

Either the works originated in part from the D20 SRD or 5.1 SRD. In which case the only way to continue to share or sell was to agree to a new much more onerous license.

The work did not use the d20 SRD or 5.1 SRD in which case the owner of the IP would have had to re-release the work under a new license. As the OGL 1.0a is no longer available for use. If the owner of the IP has sadly passed away or is no longer involved then the work becomes orphaned and has to be removed from sale.

So no Wizards did not just take a shot at folks using the content of the 5e SRD.

 

[robconley]

Has there ever been a case of a CC licensor withdrawing their offer, and then proceeding against a user of their IP whose only claim to enjoy a licence depended on taking up a post-withdrawal "automatic offer"?

The only case I am aware of in the United States that is on point is SCO vs. IBM and that was about the GPL. SCO (or the previous company they bought the IP from) for a time offered Linux under the GPL along also contributed work to Linux. And this happened to incorporate the IP they were fighting about. But SCO tried to say that they deauthorized their contribution. And ultimately did not win their point.

But to be clear this was a messy, messy, case and this was just one of the many IP issues they argued about.

You will find that ruling are thin on open licenses as companies go out of their way to avoid getting dragged into courts to avoid setting a precedent.

 

[pemerton]

No the deauthorization of the OGL 1.0a meant one of two things.

Either the works originated in part from the D20 SRD or 5.1 SRD. In which case the only way to continue to share or sell was to agree to a new much more onerous license.

The work did not use the d20 SRD or 5.1 SRD in which case the owner of the IP would have had to re-release the work under a new license. As the OGL 1.0a is no longer available for use. If the owner of the IP has sadly passed away or is no longer involved then the work becomes orphaned and has to be removed from sale.
So no Wizards did not just take a shot at folks using the content of the 5e SRD.

It didn't mean either of those things, in my view.

In your first scenario, parties could continue to rely on their existing licensed rights.

In your second scenario, the existing agreements between private parties, to which WotC is not privy, remain on foot as always, and those parties rely on express or implied permission from WotC to reproduce the text of the OGL which is copyright WotC.

 

[robconley]

It didn't mean either of those things, in my view.

In your first scenario, parties could continue to rely on their existing licensed rights.

In your second scenario, the existing agreements between private parties, to which WotC is not privy, remain on foot as always, and those parties rely on express or implied permission from WotC to reproduce the text of the OGL which is copyright WotC.

To be clear I advocate for an OGL 1.0b not because I think it is legally needed. I think it is needed socially to provide clarity to the hobby that yes OGL 1.0a open content remains available for use. And I do so knowing that even with a OGL 1.0b it use will go into decline in favor of CC and alternatives like ORC. I know of several niches in the hobby and industry that remain dependent on OGL 1.0a continued existence and utility. And that they can not easily remove themselves from its use. For example the Cepheus Game Engine.

 

[Maxperson]

No the deauthorization of the OGL 1.0a meant one of two things.

Either the works originated in part from the D20 SRD or 5.1 SRD. In which case the only way to continue to share or sell was to agree to a new much more onerous license.

The work did not use the d20 SRD or 5.1 SRD in which case the owner of the IP would have had to re-release the work under a new license. As the OGL 1.0a is no longer available for use. If the owner of the IP has sadly passed away or is no longer involved then the work becomes orphaned and has to be removed from sale.

So no Wizards did not just take a shot at folks using the content of the 5e SRD.

Do you not understand what collateral damage is?