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

[Hussar]

I maintain that as long as the morals clause is still present, it doesn't matter what else the contract says; they still have an ability to pull the plug at any time, and their reasoning is a black box that cannot be addressed. As someone else said, walking into that beartrap is a fool's choice.

But wouldn’t the market correct for this? If WotC frivolously forces someone to pull their products, there will be a pretty immediate hue and cry.

I get that borderline cases might exist, but this is not really a blank check.

I mean wouldn’t the simplest solution, if you wanted to publish something that was walking the line, be to just ask WotC before you publish?

 

[S'mon]

Assuming well established open source schemes do not have this withdrawal of offer issue - what mechanism do they have to prevent that? Is it reliance on this assumption, or might there be something else, like formulation in a way that do not place it into the domain of contract law? If it indeed is this mechanism, it seem like a reasonable assumption that this would hold, given the stated intention of the project. If there however is a (conscious) departure from the state of art with regard to mechanisms for ensuring permanent availability, I agree this would be a very risky assumption.

You could licence your material to a third party who is authorised to licence it to others. If your licence to the third party is perpetual & non-revokable that should be fine. Eg you could licence to an administrative organisation that then licences your work to others. That still uses Contract law. It also depends on the continued existence of the administrator.

Viral licences where everyone can sub-licence seem better to me. That's what OGL 1.0 does. It does not have a real withdrawal of offer issue, since the accepted offer - the contract - includes the right to sub-licence, outside the control of the original licence granter.

 

[MNblockhead]

But wouldn’t the market correct for this? If WotC frivolously forces someone to pull their products, there will be a pretty immediate hue and cry.

I get that borderline cases might exist, but this is not really a blank check.

I mean wouldn’t the simplest solution, if you wanted to publish something that was walking the line, be to just ask WotC before you publish?

If I were a business owner looking to rely on the license to build a product line, or an entire business, on, I would not want to rely on the potential of future bad press and internet outrage to save my company. Especially since Hasbro could better weather the loss of good will than I could weather even a relatively short period of uncertainty.

It still boggles my mind that nobody thought to demand for an irrevocability clause in the license back when it was first being discussed. I realize that I write this with the benefit of hindsight and that it apparently was common for open source licenses to not have this language back then. But the fact that this may have been common boggles my mind even more.

So, no, given the lessons learned in the past few weeks, if I were a publisher of TTRPG products, I would want clear language on whether the license is revocable, and if it is, under what exact conditions it can be revoked.

That is why it is equally important for TTRPG businesses "signing on" to the ORC license carefully scruitinize it and not rely on trust and warm feelings of being on the side of good. Make sure that the terms are ones you can live with. Hire experienced lawyers to pick apart the language with a their trained pessimism. The community needs to tap into its roots and wargame the hell out any open license. Really try to find ways to break it. This is also why it is important to have a the license supported by some non-profit, funded organization who can keep on top of changes in the law to protect the orginal spirit and goals of the license.

 

[clearstream]

@pemerton argues that the license text could be interpreted to somehow support a theory that the owner of the copyright to the top dependency can revoke their offer to license that text at-will and thus poison the entire ecosystem from the root.

I might have missed some crucial argumentation. As I pictured that would rely upon the conflation that knowledgeable posters have warned us to avoid, i.e. the owner can suspend their offer of any future licenses, but doing so does not terminate licenses that already exist (and particularly not those between second and third-parties.) Hence my theory that the virality of 1.0 has (potentially) done the necessary work already.

 

[clearstream]

Yeah, criminal lawyer. I don't know if they consulted a commercial firm. I kind of assume someone must have. In any case, I can say with near certainty that everyone's understanding of the license at the time (including representatives at Wizards of the Coast) was not that the offer could be withdrawn at any time as a basic principle of contract law. I think Ryan's commentary during this fiasco backs that up pretty conclusively.

Caveating that @pemerton is the best person to speak for their arguments, to my reading they are implying that under the more plausible interpretation, OGL1.0 licences / sub-licenses / sub-sub-licences (if such exist) that are already in place will withstand Hasbro deciding to no longer offer any further such licences.

I believe that those licences contain within them a construction to permit further works... provided those works incorporate only what has been licensed thus far (which so far as I know is everything necessary barring PI.) That is - from reading these hundreds of posts - my feeling is that the OGL1.0 envisions the creation of derivative works and exists in order that derivative works can be created. (Thus, also settles the question of derivative works in this case.) I look forward to being corrected / other views!

 

[clearstream]

I maintain that as long as the morals clause is still present, it doesn't matter what else the contract says; they still have an ability to pull the plug at any time, and their reasoning is a black box that cannot be addressed. As someone else said, walking into that beartrap is a fool's choice.

I don't believe this is so straightforward. As another poster pointed out, exercise of that moral clause - especially where commercial interests are at stake - cannot be wielded for other than moral purposes. For example, suppose I publish works well within the gamut of what other creators have published, and Hasbro wield their moral clause against me because, let's suppose I suspect, my commercial success threatens theirs. I will resist not the clause itself, but their wielding of it in this case.

The assumption that in a commercial context a moral clause can be wielded to pull the plug on competitors seems inaccurate to me.

 

[Hussar]

If I were a business owner looking to rely on the license to build a product line, or an entire business, on, I would not want to rely on the potential of future bad press and internet outrage to save my company. Especially since Hasbro could better weather the loss of good will than I could weather even a relatively short period of uncertainty.

But, unless they were claiming that every product you produced violated the terms, they wouldn’t be ending your company. Just one product.

Or did I misunderstand and invoking the community standards clause causes all of your products to no longer be licensed.

 

[demoss]

I get that borderline cases might exist, but this is not really a blank check.

1. I have zero trust in US conception of morality and obscenity. (Y'all are prudes from my POV.)

2. There is hue and cry now about 1.0a "de-authorization". They're still going through it through FUD and threat of lawfare. How much impact do you think hue and cry over an individual publisher being smacked would have.

 

[demoss]

But, unless they were claiming that every product you produced violated the terms, they wouldn’t be ending your company. Just one product.

Or did I misunderstand and invoking the community standards clause causes all of your products to no longer be licensed.

It is not limited to products. It is not limited to future behaviour. The consequences are not limited to the offending product.

...or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful...

You having posted a nip-slip on Twitter a decade ago is grounds for you losing access to the license for all products past and future.

Have fun pulping that inventory...

 

[S'mon]

I've published SRD 5.0 under the OGL 1.0a

I publish under OGL 1.0

I have decided to accept WoTC's kind offer under OGL 1.0a while it remains open, and have republished the SRD 5.0 accordingly. See here htt...

simonyrpgs.blogspot.com

AFAICT putting the whole thing (the SRD) up like this is compliant with the OGL licence, although the words Umber Hulk are designated as 'not OGC'. If I'm wrong, the licence says WoTC must send me a rectification notice, right?

Edit: Certainly other sites have included the SRD reference to Umber Hulk, eg Guards and Wards – 5th Edition SRD - I would guess the implication of the OGL + SRD is you can only use the term in that context, but it's a bit unclear.

 

[MNblockhead]

But, unless they were claiming that every product you produced violated the terms, they wouldn’t be ending your company. Just one product.

Or did I misunderstand and invoking the community standards clause causes all of your products to no longer be licensed.

I don't think you are misunderstanding section 6f of the proposed new OGL, but you may be underestimating the effect that killing one product can have on a company.

The problem is that you can't "fix" the "problem" until after you create and publish it. If it is an expensive print product, you may find yourself with a warehouse of product you can no longer legally sell. Even established third-party publishers may have a problem absorbing that loss. Much worse if you are a new creator who successfully Kickstarted your new cyberpunk D&D game of anti-capitalist orcs fighting the government in a dystopian future.

 

[FrogReaver]

But wouldn’t the market correct for this? If WotC frivolously forces someone to pull their products, there will be a pretty immediate hue and cry.

I get that borderline cases might exist, but this is not really a blank check.

I mean wouldn’t the simplest solution, if you wanted to publish something that was walking the line, be to just ask WotC before you publish?

So, if you thought it was walking the line then yes. What happens if you think it was perfectly fine and WOTC thinks it's past the line?

 

[Hussar]

It is not limited to products. It is not limited to future behaviour. The consequences are not limited to the offending product.

...or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful...

You having posted a nip-slip on Twitter a decade ago is grounds for you losing access to the license for all products past and future.

Have fun pulping that inventory...

I don’t think this is accurate but I’ll not argue the point since I’ve been so very wrong about a lot of things.

 

[Thomas Shey]

But wouldn’t the market correct for this? If WotC frivolously forces someone to pull their products, there will be a pretty immediate hue and cry.

How much as a creator basing your buisness on your continued ability to produce products for your line do you want to count on them being impeded by this? Especially since the most attractive targets to use this on would be the most successful?

It's playing Russian roulette with a gun you don't know how many bullets are in the cylinder. And where the person loading it may well not have your best interest in heart.

I get that borderline cases might exist, but this is not really a blank check.

I mean wouldn’t the simplest solution, if you wanted to publish something that was walking the line, be to just ask WotC before you publish?

But that's it. It doesn't have to have a damn thing to do with actual moral issues. It can just be an excuse to get someone out of the subsidiary market you've found inconvenient at any point in time. You're effectively offering someone the opportunity to sink a potential competitor at-will.

 

[Thomas Shey]

I don't believe this is so straightforward. As another poster pointed out, exercise of that moral clause - especially where commercial interests are at stake - cannot be wielded for other than moral purposes. For example, suppose I publish works well within the gamut of what other creators have published, and Hasbro wield their moral clause against me because, let's suppose I suspect, my commercial success threatens theirs. I will resist not the clause itself, but their wielding of it in this case.

The assumption that in a commercial context a moral clause can be wielded to pull the plug on competitors seems inaccurate to me.

Except they don't even have to explain what the problem is.
The black-box element of the clause makes the tool virtually unassailable other than by suing to claim the clause itself is not legitimate as constructed. Again, if you're a creator trying put together a business here, why in the name of the gods would you want to potentially put yourself in a position to have to try and do that? At that point you're setting yourself up to have to fight for your professional life on your own dime.

 

[Thomas Shey]

I don't think you are misunderstanding section 6f of the proposed new OGL, but you may be underestimating the effect that killing one product can have on a company.

The problem is that you can't "fix" the "problem" until after you create and publish it. If it is an expensive print product, you may find yourself with a warehouse of product you can no longer legally sell. Even established third-party publishers may have a problem absorbing that loss. Much worse if you are a new creator who successfully Kickstarted your new cyberpunk D&D game of anti-capitalist orcs fighting the government in a dystopian future.

And let's not forget, they're not even obliged to tell you what the problem is.

 

[Enrahim2]

One issue I haven't seen touched upon is the issue of contractual misrepresentation? I just stumbled upon the concept online, and it might seem relevant?

The contract I believe have been demonsratably been presented as a safe fundation for open source style investments. If this is found to be false due to wizards undisclosed ability to retroactively close down certain material presented as "open", that appear to be matching common definitions of misrepresentation?

I guess this topic might not be very relevant for the time being, as it appear most likely to be innocent misrepresentation, and from that as far as I can see the common outcome would be cancellation of contract. I hope noone currently would want that, and I guess the termination clause protects against any potential cascading effects of any such cancellation? (like if paizo decide to cancel their pf2 licencing trough this mechanism after confirming they didnt need it - that wouldn't affect third parties licensing pf2 content for their works)

Maybe a bit more juicy spin on this might be if the severity of misrepresentation could somehow be considered higher for any ogl1.0a contracts entered after there are evidence wizards started contemplating the posibility of "deauthorization", and public disclosure of that fact (for i stance for anything published by a someone not offered the NDA for the 1.1 version, before the first leak)? That appear to enable potential claims of damages with respect to the investments those publishers has put into their products relying on the license?

 

[SoonRaccoon]

Except they don't even have to explain what the problem is.
The black-box element of the clause makes the tool virtually unassailable other than by suing to claim the clause itself is not legitimate as constructed. Again, if you're a creator trying put together a business here, why in the name of the gods would you want to potentially put yourself in a position to have to try and do that? At that point you're setting yourself up to have to fight for your professional life on your own dime.

But if that clause is found to be not legitimate, you've just given them another way to cancel your license under 9(d).

 

[Thomas Shey]

But if that clause is found to be not legitimate, you've just given them another way to cancel your license under 9(d).

Just means you have to go to court ready to argue that clause is also illegitimate if the first one is (yes, I'm aware this complicates the likelihood of the case going your way, but that sort of multi-step booby-trapped contact is not exactly unknown, though judges don't always look on it with good favor).

But that's the overall point; that structure provides a single large way for this to blow up in your face if you sign onto it, and dealing with it if it does will be risky and not cost-free. The best you can say if it blew up in WOTC's face, it would be even a bigger problem for them.

But either way you're handling a piece of live ordnance, and you'd better have a good reason to do that.

 

[S'mon]

One issue I haven't seen touched upon is the issue of contractual misrepresentation? I just stumbled upon the concept online, and it might seem relevant?

The contract I believe have been demonsratably been presented as a safe fundation for open source style investments. If this is found to be false due to wizards undisclosed ability to retroactively close down certain material presented as "open", that appear to be matching common definitions of misrepresentation?

I guess this topic might not be very relevant for the time being, as it appear most likely to be innocent misrepresentation, and from that as far as I can see the common outcome would be cancellation of contract. I hope noone currently would want that, and I guess the termination clause protects against any potential cascading effects of any such cancellation? (like if paizo decide to cancel their pf2 licencing trough this mechanism after confirming they didnt need it - that wouldn't affect third parties licensing pf2 content for their works)

Maybe a bit more juicy spin on this might be if the severity of misrepresentation could somehow be considered higher for any ogl1.0a contracts entered after there are evidence wizards started contemplating the posibility of "deauthorization", and public disclosure of that fact (for i stance for anything published by a someone not offered the NDA for the 1.1 version, before the first leak)? That appear to enable potential claims of damages with respect to the investments those publishers has put into their products relying on the license?

I don't think Misrep applies as they represented the contract accurately for 21 years. They are lying now about what it says, but that seems to fall under Breach not Misrep.