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.