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

DavyGreenwind

Just some guy
Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.

First, the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

This is false. There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.

The good news is that, because of the reliance principle, third party creators who have already created a work under the OGL likely could continue to sell that work even if the OGL were revoked. They just could not create any new works. Kobold Press's "Tome of Beasts" would not have to be removed from the market, for instance. But they might have trouble doing a new one down the line.

Second, some people claim that the OGL is actually not necessary, that all the material in the SRD is "game mechanics," and therefore cannot be copyrighted. It is true that "game mechanics" cannot be copyrighted, but what constitutes "game mechanics" is a nebulous subject, interpreted differently by different courts, and not a matter of settled law. In game mechanics cases, the courts were usually dealing with things like rolling a dice and moving a set number of spaces, like in "Sorry." I have not been able to find any games mechanics cases on RPGs.

It is likely that the SRD is a combination of "game mechanics" and original copyrightable content. The six ability scores and twelve classes are specific and complex enough that many courts probably would be uncomfortable calling them mere "game mechanics" that cannot be copyrighted. Other courts might interpret it differently.

It is all about a larger copyright concept, wherein "ideas" cannot be copyrighted, but "expressions" can. This is super complex, famously confounding even to legal scholars, and a little beside the point, so I won't go into it here. If you are interested in reading more on the subject, I recommend an article called "Games and other uncopyrightable systems," 18 Geo. Mason L. Rev. 439.

"But even if the SRD is protected by copyright, I won't violate WotC's copyrights as long as I don't print SRD word-for-word, right?"

Wrong. That brings me to my third point.

Third, not only is the SRD protected, but any derivative works of the SRD are protected. A derivative work is a work based on, or derived from, a work that has already been copyrighted. Copyright protections protect not only the original work, but also any derivative works. I cannot write an eighth Harry Potter novel and then go out and sell it. Harry Potter 8 would not be a copy--a "reproduction" in copyright parlance--because Rowling has not written Harry Potter 8. But I still could not write it myself and sell it. Why? Because Harry Potter 8 would be a derivative work.

There's a lot of nuance on what is or is not derivative. For instance, someone wrote a Harry Potter Encyclopedia, and J.K. Rowling sued, and the Encyclopedia owner won on the copyright claim, because the court held that the Encyclopedia was different enough--the Harry Potter books were novels, not encyclopedias--that it was not a derivative work. The encyclopedia was not competing with her novels, but merely assisting the reader. A 5e sourcebook, however, might compete with official 5e sourcebooks in the eyes of a reviewing court.

Bottom line. Without the OGL and SRD, any person wanting to make content for 5e without WotC's permission would have to parse through the document and try to determine what is really "game mechanics" and what are expressions of WotC's original creation. And then, when writing their document, they would have to determine if their work is derivative of WotC's. Are subclasses derivative of the original class? Are new dragon statblocks derivative of existing dragon statblocks? I don't know the answer to this, and neither does any lawyer on Earth, because it has almost never been tested in litigation. Even small differences in the doc could make a huge difference in court.

I post this as a PSA, because, based on the advice I have been seeing from nonlawyers, people are being steered in the wrong direction. I know this will be bad news to most people, so don't shoot the messenger.
 

log in or register to remove this ad

Alzrius

The EN World kitten
Thanks for posting that.

What about the idea put forward that, if someone wants to create new material under the OGL v1.0a (after its revocation), they can do so as long as they make use of preexisting Open Game Content from an OGL v1.0a product that was published prior to the revocation, under the idea that they're sub-licensing with that publisher, rather than with WotC directly?
 


DavyGreenwind

Just some guy
Thanks for posting that.

What about the idea put forward that, if someone wants to create new material under the OGL v1.0a (after its revocation), they can do so as long as they make use of preexisting Open Game Content from an OGL v1.0a product that was published prior to the revocation, under the idea that they're sub-licensing with that publisher, rather than with WotC directly?
I think it would be tricky to pull off, and depend upon the answers to unsettled questions. For instance, if a court were to find that Druid subclasses were fundamentally derivative of the Druid Class in the SRD, it might be tough to publish a Druid subclass, even if you claim to be basing it off of a Druid subclass, or even an alternate Druid class, from a third-party supplement.

But then again, a court could find that classes are game mechanics (I don't think so, but who knows), and then we could have Druid subclasses galore.
 

Art Waring

halozix.com
Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF1e/2e SRD?
 
Last edited:

Alzrius

The EN World kitten
Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF12/2e SRD?
Actually, I don't believe that Paizo ever put out an SRD per se. They had an incomplete repository of Open Game Content from some of their books that they called the PRD (Pathfinder Reference Document), but that website was eventually shelved in favor of letting other websites archive their Open Game Content.

But I don't think that makes a difference, since as far as I know all Pathfinder content is based off of the 3.5 SRD anyway.
 


DavyGreenwind

Just some guy
Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF12/2e SRD?
Oooo, that's a tricky one. I doubt WotC would ever go after anyone publishing under the Pathfinder License. They would basically have to go after Pathfinder themselves. I'd have to think about that one, crack open the textbooks again.
 



Art Waring

halozix.com
Actually, I don't believe that Paizo ever put out an SRD per se. They had an incomplete repository of Open Game Content from some of their books that they called the PRD (Pathfinder Reference Document), but that website was eventually shelved in favor of letting other websites archive their Open Game Content.

But I don't think that makes a difference, since as far as I know all Pathfinder content is based off of the 3.5 SRD anyway.
They do have their own SRD on the hypertext d20 website called the Pathfinder Reference Document or PRD. & the pfd20srd has the PF2e SRD.
 

Oooo, that's a tricky one. I doubt WotC would ever go after anyone publishing under the Pathfinder License. They would basically have to go after Pathfinder themselves. I'd have to think about that one, crack open the textbooks again.
if you are doing thought experiments how does this effect retroclones and other genre games (like say mutants and masterminds). Heck could they slap down a C&D on enworld for level up?
 

DavyGreenwind

Just some guy
@DavyGreenwind

The original intent of the persons in WotC was precisely to make the OGL irrevocable. Would courts take original intent into account if a dispute arose against revocation?
In Europe and other parts of the world, yes. In the United States, a big nope.

Protecting the original intent of the creator in copyright law falls under the umbrella of what are called "moral rights." (I'm paraphrasing and nutshelling here). Basically, content creators under moral-rights systems have some control over the way their content is used and displayed, even after they sell it to someone else. If I'm a painter, and I sell my painting to someone, I could sue them if they destroyed it, even though it is "theirs," because I have a moral right to not have my painting destroyed.

In the US, there generally are no moral rights. If I buy a painting, I can throw it into the ocean if I want, and no one could do a thing about it (there may be some weird exception to paintings I don't know about. I'm just using paintings as an example).

All this to say that WotC can revoke the license for any reason or no reason. The best way to think about an open license is like a "lost dog, $500 if found" sign. As long as that sign is up, anyone who brings me my dog is legally entitled to $500. But if I change my mind, take down the sign, and put up a new sign that says "never mind, I revoke my offer," a person could not show up 5 years later with my dog and demand $500.
 

@DavyGreenwind

The original intent of the persons in WotC was precisely to make the OGL irrevocable. Would courts take original intent into account if a dispute arose against revocation?
I mean, check out the FAQ WotC had on their own site in 2004, available from Archive.org Open Game License:Frequently Asked Questions

Q: Can’t Wizards of the Coast change the License in a way that I wouldn’t like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

---

I'm sure we could just ask Ryan Dancey what his intentions were. I'm pretty sure they did not include "letting hungry hungry Hasbro crush any game publisher that refused to serve as a vassal."
 

S'mon

Legend
Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.

First, the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

This is false. There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.

The good news is that, because of the reliance principle, third party creators who have already created a work under the OGL likely could continue to sell that work even if the OGL were revoked. They just could not create any new works. Kobold Press's "Tome of Beasts" would not have to be removed from the market, for instance. But they might have trouble doing a new one down the line.

Second, some people claim that the OGL is actually not necessary, that all the material in the SRD is "game mechanics," and therefore cannot be copyrighted. It is true that "game mechanics" cannot be copyrighted, but what constitutes "game mechanics" is a nebulous subject, interpreted differently by different courts, and not a matter of settled law. In game mechanics cases, the courts were usually dealing with things like rolling a dice and moving a set number of spaces, like in "Sorry." I have not been able to find any games mechanics cases on RPGs.

It is likely that the SRD is a combination of "game mechanics" and original copyrightable content. The six ability scores and twelve classes are specific and complex enough that many courts probably would be uncomfortable calling them mere "game mechanics" that cannot be copyrighted. Other courts might interpret it differently.

It is all about a larger copyright concept, wherein "ideas" cannot be copyrighted, but "expressions" can. This is super complex, famously confounding even to legal scholars, and a little beside the point, so I won't go into it here. If you are interested in reading more on the subject, I recommend an article called "Games and other uncopyrightable systems," 18 Geo. Mason L. Rev. 439.

"But even if the SRD is protected by copyright, I won't violate WotC's copyrights as long as I don't print SRD word-for-word, right?"

Wrong. That brings me to my third point.

Third, not only is the SRD protected, but any derivative works of the SRD are protected. A derivative work is a work based on, or derived from, a work that has already been copyrighted. Copyright protections protect not only the original work, but also any derivative works. I cannot write an eighth Harry Potter novel and then go out and sell it. Harry Potter 8 would not be a copy--a "reproduction" in copyright parlance--because Rowling has not written Harry Potter 8. But I still could not write it myself and sell it. Why? Because Harry Potter 8 would be a derivative work.

There's a lot of nuance on what is or is not derivative. For instance, someone wrote a Harry Potter Encyclopedia, and J.K. Rowling sued, and the Encyclopedia owner won on the copyright claim, because the court held that the Encyclopedia was different enough--the Harry Potter books were novels, not encyclopedias--that it was not a derivative work. The encyclopedia was not competing with her novels, but merely assisting the reader. A 5e sourcebook, however, might compete with official 5e sourcebooks in the eyes of a reviewing court.

Bottom line. Without the OGL and SRD, any person wanting to make content for 5e without WotC's permission would have to parse through the document and try to determine what is really "game mechanics" and what are expressions of WotC's original creation. And then, when writing their document, they would have to determine if their work is derivative of WotC's. Are subclasses derivative of the original class? Are new dragon statblocks derivative of existing dragon statblocks? I don't know the answer to this, and neither does any lawyer on Earth, because it has almost never been tested in litigation. Even small differences in the doc could make a huge difference in court.

I post this as a PSA, because, based on the advice I have been seeing from nonlawyers, people are being steered in the wrong direction. I know this will be bad news to most people, so don't shoot the messenger.

I agree with you about game mechanics. I also think that WoTC can cease to licence material under the OGL 1.0 (and almost certainly can stop ONE D&D being licenced under the 1.0 OGL). However I don't think they can stop the third party sub-licensing permitted via the OGL 1.0. If I'm right then a 3PP can still sub-licence the contents of the 5e SRD from eg 5th Edition SRD under the OGL 1.0. If I'm wrong then Open Software goes away too.
 

DavyGreenwind

Just some guy
if you are doing thought experiments how does this effect retroclones and other genre games (like say mutants and masterminds). Heck could they slap down a C&D on enworld for level up?
Forgive my squirreliness, but that would be tiptoeing dangerously close to legal advice. I must generally refrain from commenting on specific works. I will say that other genres that are merely using a D20 system are probably on better footing than something that is specifically a 5e supplement.
 


S'mon

Legend
In Europe and other parts of the world, yes. In the United States, a big nope.

Protecting the original intent of the creator in copyright law falls under the umbrella of what are called "moral rights." (I'm paraphrasing and nutshelling here). Basically, content creators under moral-rights systems have some control over the way their content is used and displayed, even after they sell it to someone else. If I'm a painter, and I sell my painting to someone, I could sue them if they destroyed it, even though it is "theirs," because I have a moral right to not have my painting destroyed.

In the US, there generally are no moral rights. If I buy a painting, I can throw it into the ocean if I want, and no one could do a thing about it (there may be some weird exception to paintings I don't know about. I'm just using paintings as an example).

All this to say that WotC can revoke the license for any reason or no reason. The best way to think about an open license is like a "lost dog, $500 if found" sign. As long as that sign is up, anyone who brings me my dog is legally entitled to $500. But if I change my mind, take down the sign, and put up a new sign that says "never mind, I revoke my offer," a person could not show up 5 years later with my dog and demand $500.

This is confusing Moral Rights of the Author (which I did my PhD on!) with interpretation of contract terms. 'Intent' of the author in Droit D'Auteur is a completely separate issue from interpreting what a contract means.

The second 'lost dog' point is mixing up revocation of an offer (in a unilateral contract) with the question of whether WoTC can terminate an existing contract. Or even stop third parties contracting via a sub-licence.

(Sorry if I'm persnickety, I have a pile of student contract problem papers I'm marking!)
 

DavyGreenwind

Just some guy
They generally look at what the words would mean to a reasonable person at the time. I think WoTC's 2000 FAQ explaining their intent would certainly be relevant.
Intent matters. but the words on the page always trump intent. And open licenses are strange things anyway, not like normal contracts. Especially when it comes revocability, the word on the page matters. "Irrevocable" is a very common word used in licenses, and if it is not there, the license is generally presumed revocable.
 

kenada

Legend
Supporter
Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF1e/2e SRD?
Pathfinder 1e and 2e both use the 3e SRD. It doesn’t seem like using Pathfinder instead would be any more safe.
 

An Advertisement

Advertisement4

Top