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

[The Stray]

i can tell you what happened.

Brian Lewis borrowed the definitions section from a software open license. He ran it through a spellchecker. The spellchecker changed the word to potation.

And no one actually understood the original term and was able to catch it. Happens a lot.

OGL - Why do lawyers write like that: Worrying about the OGL (Part 3)

So we are now on part 3 of the occasional series on the law- again, this is a general explainer about litigation, but has application to TTRPGs due to the current kerfuffle over the OGL. How to Do Your Own Legal Research: Worried about the OGL? Law is Hard: Worried About the OGL (Part 2)...

www.enworld.org

Eh, potation portation.

 

[AbdulAlhazred]

My guess would be just extrapolating out from the fact they had their fire-breathing dragon being red; it was easy to associate most of the other colors with their breath weapons (if anything, the blue was the biggest reach.)

Well, I sure haven't found any other reference to the scheme that predates D&D. I'd be very hesitant to copy that concept, although it certainly has been done by, for instance, World of Warcraft. Almost any of the specific chromatic dragon types could be argued to be based on some dragon legend, often from China. There are red fire dragons, black rain dragons, the yellow imperial dragon, etc. Still, if you recreate exactly the TSR 1974 colored dragons, you're going to have a hard time explaining how you weren't copying Dave/Gary.

 

[AbdulAlhazred]

To me, it seems to depend on the proper construction of the contract: what is the precise scope of the power to sub-license that is granted to licensees, and how is that power regulated by other general legal principles?

Does this turn, in part, on property/IP law principles? Agency principles? Even sticking just to contract law I can see complexities:

Upthread (or maybe in one of the other threads) I noted that the terms of the OGL v 1.0/1.0a, which confer on the licensee a permission to use "the Open Game Content", are unclear as to whether that permission extends to all of the OGC that is in the SRD or only the OGC that the licensee actually uses in their work: ie is the OGC that is referred to in section 4 the OGC identified by WotC in its licensed work, or is it the OGC the use of which, by the licensee, constitutes acceptance for the purposes of section 3?

If WotC now revokes its standing offer to licence the text in the SRD that it has identified as OGL, does that affect the proper construction of the conferral of the permission conferred by section 4? Eg does "the OGC" mean "the OGC that is found in the SRD and that the contributor continues to offer to licensees under the terms of the OGL"?

I don't necessarily think that the above is a winning argument, but it's not necessarily hopeless either. I certainly think it's stronger than the (in my view) spurious assertion of a power of "de-authorisation".

Is it at all clear that there is a 'sub-licensing' that can happen which would effectively make it very hard to withdraw your offer (IE you could, but then the existing licensees would still be able to offer your OGC under effectively the same terms). This obviously is a question that is relevant particularly in terms of your question about what exactly the licensee has licensed (all OGC in existence, or only the specific bits they actually reproduce or extend). I find it hard to believe you cannot withdraw your offer in SOME sense, but it might not really mean much.

 

[AbdulAlhazred]

To me, it seems to depend on the proper construction of the contract: what is the precise scope of the power to sub-license that is granted to licensees, and how is that power regulated by other general legal principles?

Does this turn, in part, on property/IP law principles? Agency principles? Even sticking just to contract law I can see complexities:

Upthread (or maybe in one of the other threads) I noted that the terms of the OGL v 1.0/1.0a, which confer on the licensee a permission to use "the Open Game Content", are unclear as to whether that permission extends to all of the OGC that is in the SRD or only the OGC that the licensee actually uses in their work: ie is the OGC that is referred to in section 4 the OGC identified by WotC in its licensed work, or is it the OGC the use of which, by the licensee, constitutes acceptance for the purposes of section 3?

If WotC now revokes its standing offer to licence the text in the SRD that it has identified as OGL, does that affect the proper construction of the conferral of the permission conferred by section 4? Eg does "the OGC" mean "the OGC that is found in the SRD and that the contributor continues to offer to licensees under the terms of the OGL"?

I don't necessarily think that the above is a winning argument, but it's not necessarily hopeless either. I certainly think it's stronger than the (in my view) spurious assertion of a power of "de-authorisation".

Oh, and here's an interesting side point. The Creative Commons licenses specify EXPLICITLY that there isn't any sub-licensing. For any given offer, all acceptances constitute a license between the OWNER of the copyright and whomever accepts, even if they are copying from another licensee. This would seem to imply that an offer to license under CC license CAN be EFFECTIVELY withdrawn. It would still be messy of course.

 

[FrogReaver]

Rather than answer your questions directly - as I don't think I quite follow them - I'll try and restate my thinking on this. And at the risk of tedium, I reiterate that it is not intended to be definitive in any way, but is an idea I've come up with, based on some thoughts I posted on one of the threads (probably this one) a couple of days ago, and that seems consistent with WotC's latest announcement of its plans.

First, everyone agrees that WotC can retract/revoke/bring to an end its standing offer to the world to licence the OGC in its SRD on the terms of the OGL v 1.0a. (As per my post just upthread, I put to one side arguments about it being bound in respect of the 3E SRD by its own use of others' OGC in 3E-era publications. But I will say in passing I'm not surprised that WotC stopped doing that pretty quick-smart.)

Second, the puzzle everyone is interested in is - once WotC make it clear that they are doing that - what power do existing licensees enjoy to continue sub-licensing WotC's OGC? @S'mon, for instance, has consistently - and not just over the past few weeks but for at least a decade - argued that the sub-licensees retain a full power to sub-license, making the practical effect of WotC's retraction of its offer nil.

Up until I read @bmcdaniel's post I agreed with him. But that post prompted me to reduce my certainty. And now I have come up with the following argument for WotC that I think is not hopeless. It starts with the terms of section 4:

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.​

The power to sub-license flows from the meaning of "Use", which includes (per the various nesting definitions in section 1):

use, reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;, copy, edit, format, modify, translate and otherwise create 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 of Open Game Content.​

(The syntax there is a little bit tortured, but I don't need to clean it up to express my ideas.)

The subject matter of that power is the Open Gaming Content that is referred to in section 4. What is that?

One interpretation is the following: that the phrase "the Open Gaming Content" in section 4 has the same meaning as it does in section 3, which reads:

By Using the Open Game Content You indicate Your acceptance of the terms of this License.​

In that case, the permissions and powers conferred by section 4 are confined to OGC that is actually used by the licensee. This would mean that to get access to all of the SRD, following a retraction of offer by WotC, would require using a site like the hypertext SRD. Now WotC may take the view that, given that they contribute no OGC of their own (as far as I know) they have not given consideration and hence do no enjoy an irrevocable licence. (I don't know whether the promises made in respect of product identity would be sufficient consideration in themselves - I think they probably are, but I don't know US contract law very well.)

But moving on.

Another interpretation of the key phrase in section 4 is that it refers to "the Open Gaming Content in the licensed work" - which is to say, all the OGC in the SRD. In this case, any existing licensee would have access to all the SRD OGC even once the offer is retracted by WotC.

But another interpretation of that phrase is that it refers to "the Open Gaming Content in the licensed work, so long as we continue to offer to license that work on the terms of this licence". That is not the most natural interpretation, but it is one that might be argued for by pointing to contextual considerations (such as the gratuitous nature of WotC's offer). For licensees who have contractual obligations to make those standing offers (ie all the licensees who have made that promise as their consideration in taking up the licence) that interpretation is not practically different from the one in the previous paragraph. But for WotC it obviously is, as WotC has no contractual obligation to keep its offer on foot.

On this candidate interpretation, once the offer is retracted the permission to use, including by way of sub-licensing, comes to an end. Existing published works would not be copyright violations, as that use occurred when the permission was still on foot. But new published works (whether by existing licensees or putative new sub-licensees) would not be licensed ones.

@pemerton

Is this the post you had in mind in the other thread?

If so, doesn't Section 1(d) define Open Gaming Content? If so, doesn't that invalidate your argument above?

 

[pemerton]

Is it at all clear that there is a 'sub-licensing' that can happen which would effectively make it very hard to withdraw your offer (IE you could, but then the existing licensees would still be able to offer your OGC under effectively the same terms). This obviously is a question that is relevant particularly in terms of your question about what exactly the licensee has licensed (all OGC in existence, or only the specific bits they actually reproduce or extend). I find it hard to believe you cannot withdraw your offer in SOME sense, but it might not really mean much.

In my view, the bit you have bolded is not straightforward.

What you say may be correct, and probably is the better view. But as per my post #2106 in this thread, I don't think it is the only view that can be sustained by plausible argument.

 

[The Scythian]

Well, I sure haven't found any other reference to the scheme that predates D&D. I'd be very hesitant to copy that concept, although it certainly has been done by, for instance, World of Warcraft. Almost any of the specific chromatic dragon types could be argued to be based on some dragon legend, often from China. There are red fire dragons, black rain dragons, the yellow imperial dragon, etc. Still, if you recreate exactly the TSR 1974 colored dragons, you're going to have a hard time explaining how you weren't copying Dave/Gary.

The chromatic dragons were invented by Gary Gygax before D&D, and even before Chainmail. He wrote about them in a series of short (paragraph long) articles for a fanzine called Thangorodrim, which focused on Middle-Earth Diplomacy variants. The articles covered white, black, green, blue, and mottled dragons, with the mottled dragons also being known as purple worms. The red dragon was mentioned, but never got its own entry, presumably because it wasn't necessary, as people reading the fanzine would have recognized Smaug as a red dragon.

Dave Arneson's Blackmoor campaign had a different color scheme, which included gold dragons. Gygax expanded on the gold dragon to create metallic dragons to oppose the chromatic dragons, with their relative power levels based on the copper-silver-gold-platinum arrangement of coin values, although he added bronze and brass.

While WotC probably wouldn't be able to lay claim to something as basic as a fire-breathing dragon of any color, they would probably have much better luck with the other colors and their associated breath weapons. For example, while you can probably find countless examples of green dragons in stories and artwork throughout history, you'd have a hard time finding green dragons that breathe chlorine gas, specifically. And you're probably not going to find dragons of any color that have multiple breath weapons like the metallic dragons.

 

[pemerton]

@pemerton

Is this the post you had in mind in the other thread?

Yes.

If so, doesn't Section 1(d) define Open Gaming Content?

Yes.

If so, doesn't that invalidate your argument above?

No. My argument is about the construction of the permission granted, under section 4, in respect of the Open Gaming Content. The reference of that phrase is not established by section 1(d), anymore than, if I enter into a contract with you to let your drive the car, the dictionary definition of "car" will tell us which car you are permitted to drive.

 

[mamba]

Because, presumably, if the old OGL was not "deauthorized" or revoked, couldn't bad actors just use the old one to make NFTs and racist stuff?

they probably could, I consider neither a good enough reason to revoke 1.0a

 

[mamba]

Right, and that was what I was essentially arguing. Anyone who thinks they have an open-and-shut legally airtight case in which copyright, or even contract law is involved, that person is a fool.

we are in agreement on this, I don't think I ever said there is no risk involved

 

[Thomas Shey]

Well, I sure haven't found any other reference to the scheme that predates D&D. I'd be very hesitant to copy that concept, although it certainly has been done by, for instance, World of Warcraft. Almost any of the specific chromatic dragon types could be argued to be based on some dragon legend, often from China. There are red fire dragons, black rain dragons, the yellow imperial dragon, etc. Still, if you recreate exactly the TSR 1974 colored dragons, you're going to have a hard time explaining how you weren't copying Dave/Gary.

I didn't say it existed before D&D. I just said once you're going to do dragons with non-fire breaths (and at least acid has some pedigree), the colors match up pretty well on association (other than blue which is a little odd, but lightning-sky has some connection).

 

[S'mon]

Yes, that matters to the hypertext SRDers. But I think that's probably a sideshow.

The key issue, once WotC accept that the licence remains on foot, is what is the scope of the permissions and powers conferred by section 4. And to me that seems to turn on the interpretation of the phrase the Open Gaming Content. (The term "use" is also important in that section, but its defined meaning seems so broad that I can't see how any of this is going to turn on its interpretation - except to the extent that its broad meaning helps provide context for making sense of the phrase "the OGC".)

AFAICS, after WoTC retract their standing offer, clearly I cannot contract with them as I can no longer accept their offer. I can only contract with someone who continues to offer OGC under the OGL. I can only use WoTC-originated OGC that someone else has already republished under the OGL.

 

[pemerton]

AFAICS, after WoTC retract their standing offer, clearly I cannot contract with them as I can no longer accept their offer. I can only contract with someone who continues to offer OGC under the OGL. I can only use WoTC-originated OGC that someone else has already republished under the OGL.

But I'm quite pleased with my idea for an interpretive argument that runs WotC's way (roughly, that the OGC means OGC which is included in the licensed work and is still under an offer to licence it. I don't think that that's necessarily the most natural or plausible interpretation of the phrase, but to me it at least makes sense, unlike all the stuff about "de-authorisation" which doesn't.

 

[S'mon]

Re colour-coded dragons, my guess would be that under English copyright (CDPA) the concept has too high a level of abstraction to be copyright protected. "Blues breath lightning, greens breath chlorine" etc I would guess would not be found to be protected.
Edit: thinking of the approach taken in cases like the Ideal Home case Ideal Home pays for its designs

I do think the specific visual depictions of the D&D dragons that originated with 3e would be copyright protected, though. In particular the look of the D&D black dragon is very distinctive. So some video game 'beholder type' monsters could conceivably be found infringing depending on the level of resemblance - once it is established copying has occurred, the question would be whether a 'substantial part' has been taken of the original copyright work (Francis Day & Hunter v Bron).

 

[S'mon]

But I'm quite pleased with my idea for an interpretive argument that runs WotC's way (roughly, that the OGC means OGC which is included in the licensed work and is still under an offer to licence it. I don't think that that's necessarily the most natural or plausible interpretation of the phrase, but to me it at least makes sense, unlike all the stuff about "de-authorisation" which doesn't.

Yes it's not nonsensical, but clearly it was not the intent of WoTC when they created the contract. Past WoTC could not stop future WoTC from withdrawing an offer to contract, but past WoTC was trying its best to stop future WoTC removing OGC from circulation. Everyone who contracted with WoTC under the OGL 2000-2022 knew what WoTC meant, and WoTC too knew, and said so in their FAQ.

 

[S'mon]

Racism in the context of an open content license is a non-issue because the larger community is already pushing against that, so it doesn't find any traction. Not saying I don't care about it. Just saying that in an industry that already has thin profit margins, bigotry just isn't a road to a market share worth mentioning. Certainly not worth actively blocking people from creating content under standing open licenses.

I'd say that objectionable content was a non issue mostly because the OGL already prohibits you from using WoTC or others' trade marks to indicate compatibility, so there is no possibility of brand tarnishment.

 

[S'mon]

I'm very interested in how they plan to say that legacy products are considered licensed via the 1.0a but not licensed enough to allow for new content to be created from them. Which the 1.0a, which they just said is considered an authorized license for legacy products, is what those products have been published under.

If WotC wants to do that, they're required to revoke or unauthorize the license and then declare "we are not going to pursue copyright litigation against all previously-published material under the 1.0a license, but will we on any new material published under the revoked and or unauthorized license."

What they cannot say is "this is an authorized product under the 1.0a" (even for a "grandfathered legacy product) while saying "but you can't use it to make additional new derivative material like this authorized license says you can" because those two statements are logically in opposition.

Unless they believe they can pick and choose which parts of the 1.0a license that they can "authorize" or "unauthorize." Which to me seems an even bigger can of legally-problematic worms than saying they unauthorize the whole thing or revoke the whole thing.

Sadly, I expect the soon-to-be seen legalese to be deliberately left vague because the goal isn't for clarity to exist there, but for confusion and uncertainty. I would love to be wrong, and really hope that I am.

joe b.

Yes, that's what I was trying to say.

 

[FrogReaver]

Yes.

Yes.

No. My argument is about the construction of the permission granted, under section 4, in respect of the Open Gaming Content. The reference of that phrase is not established by section 1(d), anymore than, if I enter into a contract with you to let your drive the car, the dictionary definition of "car" will tell us which car you are permitted to drive.

Section 8 clearly shows that OGC is expandable by future contributors.

Your argument then is, because OGC isn’t a static thing that it’s not defined and thus they can argue it means whatever they want. I find that argument non-sensical because OGC is defined and it’s also clearly expandable within the license as new content creators add to it. The ambiguity around OGC required for your conclusion just isn’t there within the license.

The authorized argument is 10x more plausible than this IMO. Not that it’s particularly plausible either.

 

[S'mon]

Yes it's not nonsensical, but clearly it was not the intent of WoTC when they created the contract. Past WoTC could not stop future WoTC from withdrawing an offer to contract, but past WoTC was trying its best to stop future WoTC removing OGC from circulation. Everyone who contracted with WoTC under the OGL 2000-2022 knew what WoTC meant, and WoTC too knew, and said so in their FAQ.

Although I said it's not nonsensical on its face, there does appear to be a logical contradiction. Per the licence, a publisher has to offer WoTC OGC on the same terms they received it, so they cannot both abide by their licence terms in OGL 1.0 and also not re-licence the WoTC OGC they received under the licence.

If I try to abide by WoTC's claim to withdraw their OGC from re-licencing, I am in breach of my own obligations under the OGL. I'm not allowed to amend the OGL to change the licence.

 

[pemerton]

Section 8 clearly shows that OGC is expandable by future contributors.

What do you mean by "OGC is expandable"? OGC is not a thing that gets bigger or smaller. It's a category of copyrighted material - predominantly text - within a contractual licensing regime.

Here is the text of section 8:

If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content.​

That is not a definition of anything. It establishes an obligation on parties to the contract who distribute OGC pursuant to the OGL. It applies to the publishers of the Hypertext SRD, who contributes no new OGC, as much as to (say) Paizo, who does contribute new OGC.

Your argument then is, because OGC isn’t a static thing that it’s not defined and thus they can argue it means whatever they want. I find that argument non-sensical because OGC is defined and it’s also clearly expandable within the license as new content creators add to it.

You clearly don't understand my argument.

Here's a question for you. Here is the text of sections 3 and 4 (the emphasis is added by me):

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.​

Do the two italicised terms refer to the same thing, or not?

If they do, then the permissions and powers granted pursuant to section 4 are confined to OGC that a licensee uses.

I think an alternative construction is that the phrases are not co-referring, and that the phrase in section 4 refers to the OGC that occurs in the licensed work. That alternative construction is suggested by section 2, which says that

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.​

"Applies" is not a term of art, but one way that the licence can "apply" to OGC is to licence its use; and if that is what is intended, then the conferral of permissions and powers by section may pick up the reference in section 2 to any OGC that contains the relevant notice. This would mean, for instance, that if you publish a work that uses OGC from the SRD, then you enjoy section 4 powers and permissions in respect of the whole of the OGC (ie any OGC) that is found in the SRD.

Do you have any view on which of the above two constructions is the more plausible one?

Whether or not you do, I also suggest that there is at least one additional construction available of the italicised phrase in section 4, namely, the OGC that occurs in the licensed work that is offered for licence pursuant to the OGL. That construction would draw even more heavily on the interaction with section 2, and particularly its reference to the OGC containing a notice that it may only be used under and in terms of the OGL. Because if WotC ceases to offer to license OGC in the SRD, then that OGC ceases to be OGC that contains a notice indicating that it may only be used under and in terms of the OGL.

You may wish that this third candidate interpretation is not correct. Perhaps its not. But the argument for it is not nonsensical. It's reasoned by reference to the text of the contract. That's how contractual interpretation works.