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


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FrogReaver

As long as i get to be the frog
It seems fairly clear to me that, when the OGL was drafted, promulgated, and taken up by 3PPs, no one on either side of the agreement contemplated in any practical sense WotC withdrawing its offer to license. Even the stuff on the FAQ about revocation I think is more focused on WotC trying to revoke issued licences rather than WotC withdrawing its standing offer. (At least that's my recollection. I'm happy to be corrected if my recollection is false - I haven't gone back to the FAQ text to double check.)
FAQ 22 was interesting.

22. Who is the "Licensee" referred to as "You" by the License?

Any recipient of any material using the Open Game License. In other words, you become a Licensee when you receive Open Game Content, and anyone you distribute that content to (or any derivative works based on that content) also becomes a Licensee. If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.
 

masdog

Explorer
FAQ 22 was interesting.

22. Who is the "Licensee" referred to as "You" by the License?

Any recipient of any material using the Open Game License. In other words, you become a Licensee when you receive Open Game Content, and anyone you distribute that content to (or any derivative works based on that content) also becomes a Licensee. If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.
So this FAQ makes the OGL read like a copyleft license.
 

So this FAQ makes the OGL read like a copyleft license.
It is for the actual OGC part, yes. But you don't technically have to contribute to that "bucket". This guy wrote a PhD on it, and he explains it better than I could.

 

pemerton

Legend
FAQ 22 was interesting.

22. Who is the "Licensee" referred to as "You" by the License?

Any recipient of any material using the Open Game License. In other words, you become a Licensee when you receive Open Game Content, and anyone you distribute that content to (or any derivative works based on that content) also becomes a Licensee. If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.
What are you saying is interesting about it?

To me it seems fairly straightforward: it's explaining how the offer and acceptance provision works. The word "receive" isn't a technical term, but I think the overall intent is clear enough. The bit about "anyone you distribute" OGC to is explaining that licensees enjoy a power to sub-license.

I don't see how this FAQ has any bearing on what happens if WotC withdraws its offer to license its OGC.
 

Enrahim2

Explorer
What are you saying is interesting about it?
I cannot speak for FrogReaver, but to me this is the part that might be interesting in terms of your approach to trying to understand what is meant by "open gaming content":
If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.
This choice of words making you a licensee rather than merely a licensor I think is the interesting detail. To me this reads as you have provided a body of your own original work to the pool of OGC, and that you indeed license the use of this work from the contributors, despite it only containing material of your own making.

I don't think it is critical, but this seem to lend itself better to the idea of OGC being a universal pool of content to be drawn from, rather than content specifically tied to a single product/use of the license.

At the very least this seem like so ething a bit beyonnd simply stating trivial properties of licensing in general, as in the normal case I presume someone publishing something original with a license offer attached would not be considered a licensee?
 

Enrahim2

Explorer
This choice of words making you a licensee rather than merely a licensor I think is the interesting detail. To me this reads as you have provided a body of your own original work to the pool of OGC, and that you indeed license the use of this work from the contributors, despite it only containing material of your own making.
Oh, replying my past self: I just realised this has much wider implications! The main argument I have seen for wizards possibly being able to withdraw their srd offer is due to their role as licensor. But if indeed they also are indeed a licensee of the OGC of the srds, wouldn't that mean that they are similarly bound to the requirement of offering the license to this content as other licensees?
 

pemerton

Legend
Oh, replying my past self: I just realised this has much wider implications! The main argument I have seen for wizards possibly being able to withdraw their srd offer is due to their role as licensor. But if indeed they also are indeed a licensee of the OGC of the srds, wouldn't that mean that they are similarly bound to the requirement of offering the license to this content as other licensees?
WoC isn't licensing its content to itself. It owns the copyright.
 

tomBitonti

Adventurer
FAQ 22 was interesting.

22. Who is the "Licensee" referred to as "You" by the License?

Any recipient of any material using the Open Game License. In other words, you become a Licensee when you receive Open Game Content, and anyone you distribute that content to (or any derivative works based on that content) also becomes a Licensee. If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.
I find the last sentence problematic for licensees: That last sentence seems to imply that the particular license for a new product doesn’t exist until the product is distributed. Implying that the license offer can be withdrawn while the product is being created. That is, assuming that the license offer can be withdrawn.

I don’t understand the “anyone you distribute the content to” becomes a licensee statement. I’m a licensee? I’ve never distributed OGC.

TomB
 

FrogReaver

As long as i get to be the frog
What are you saying is interesting about it?

To me it seems fairly straightforward: it's explaining how the offer and acceptance provision works. The word "receive" isn't a technical term, but I think the overall intent is clear enough. The bit about "anyone you distribute" OGC to is explaining that licensees enjoy a power to sub-license.

I don't see how this FAQ has any bearing on what happens if WotC withdraws its offer to license its OGC.
1. Despite claims that you must publish under OGL 1.0a to become a licensee, the faq says you become a licensee upon receiving OGC.

This is important due to all the people rushing to publish under OGL 1.0a.

2. The FAQ also claims that distributing under the OGL 1.0a (even for works wholly your own) makes you a licensee - implication being that WOTC is also a licensee to the OGL 1.0a.

3. Taken together this strongly suggests that OGC is a shared pool of content and also that the ‘Contributors’ in the license function as a single entity instead of separate ones each licensing their content separately under OGL 1.0a.

Thus I would say that the contributors as a whole would have to withdraw the offer to license OGC. WOTC is a licensee and is not the entity making the license offer in the OGL 1.0a.
 


FrogReaver

As long as i get to be the frog
I find the last sentence problematic for licensees: That last sentence seems to imply that the particular license for a new product doesn’t exist until the product is distributed. Implying that the license offer can be withdrawn while the product is being created. That is, assuming that the license offer can be withdrawn.

I don’t understand the “anyone you distribute the content to” becomes a licensee statement. I’m a licensee? I’ve never distributed OGC.

TomB
According to the FAQ There’s 2 ways to become a licensee. Receive OGC. Distribute your own OGC under the OGL.
 


FrogReaver

As long as i get to be the frog
A FAQ is not legally binding, and this one appears to be wrong on top of that… If you provide material under a license you are a licensor. If someone else uses that material, they are a licensee
I think the faq is correct.

‘the contributors’ are the licensor. You can still be a licensee to ‘the contributors’
 

FrogReaver

As long as i get to be the frog
I find the last sentence problematic for licensees: That last sentence seems to imply that the particular license for a new product doesn’t exist until the product is distributed. Implying that the license offer can be withdrawn while the product is being created. That is, assuming that the license offer can be withdrawn.
It could be - but if I am right then it would take all contributors combined to withdraw the OGL 1.0a offer. No unilateral withdrawal by one of the contributors.

I don’t understand the “anyone you distribute the content to” becomes a licensee statement. I’m a licensee? I’ve never distributed OGC.

TomB
Distributing content is Simply 1 path to becoming a licensee. The other is to receive OGC.
 
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FrogReaver

As long as i get to be the frog
Oh, replying my past self: I just realised this has much wider implications! The main argument I have seen for wizards possibly being able to withdraw their srd offer is due to their role as licensor. But if indeed they also are indeed a licensee of the OGC of the srds, wouldn't that mean that they are similarly bound to the requirement of offering the license to this content as other licensees?
Exactly. Though I’d add, IMO they only have to do that when using material as OGC. So the PHB doesn’t need to include the OGL or notice.
 
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FrogReaver

As long as i get to be the frog
‘Distribute your own OGC under the OGL.’ does not make you a licensee, it makes you a licensor. You might also be a licensee, but then that is not because of distributing OGC content.

Do you agree?
No. By using OGC you become a licensee. Distributing OGC is defined as ‘use’. Therefore distributing OGC (even your own) makes you a licensee.
 

Distributing content is Simply 1 path to becoming a licensee. The other is to receive OGC.
According to the FAQ, yes. But not according to the text itself. Arguably, it's a gross simplification of the following interpretation (emphases mine in the following).

From section 3: "Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."

"Using" is defined as to "use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."

"Distribute" is defined as "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute".

Indeed, having "Used" OGC like this by licensing it, WotC "must affix such a notice to any Open Game Content that [they] Use". If they don't, they're in breach. But sublicenses survive terminations for breach. So there's no "putting the genie back in the bottle" if it's already out there.

There is then a case that WotC, having licensed OGC according to the license, has accepted the terms and is thus contractually bound to continue doing so. Like Bob Tarantino writes, "open content must remain open for all future users."

@pemerton might disagree, but I hope he'll tell us why! I suspect this somewhat circular reasoning is unappealing for some reason.
 
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