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

[pemerton]

(IANAL) There is one strange thing with the kit Walsh update though. It make it sound like wizards is supposed to be one of the parties of the contract, but I see nothing in the agreement text itself that indicates that.

<snip>

Please explain where I am wrong!

WotC offers to licence its SRD on the terms set out in the OGL v 1.0a (read together with WotC's declarations of OGC and product identity). Parties enter into a contract with WotC by publishing in the terms set out in the OGL, thereby (as per section) 3, indicating their acceptance of the offer. This is what makes WotC a party to the contract. Which is the whole basis of the argument, widely advanced by multiple posters in this thread, that WotC has no unilateral power to revoke the licence it has granted to the parties it has contracted with.

 

[pemerton]

I guess my question was around the vague use of "authorized license" in Section 9, and if a product was dual-licensed, would the second license be considered authorized for the purpose of that section. AFAIK, it has no bearing on anything going on right now. It was just an interesting question that I thought of.

An "authorised licence", under section 9, is a licence that is published with the specified authority (ie by WotC or its designated agent) and that constitutes a "version" of the OGL v 1.0/1.0a. Not too far upthread I've indicated my view (somewhat tentative, but not completely unreasoned) as to what some of the constraints are that a licence must satisfy to count as a version (eg it might change obligations to do with product identity, but probably couldn't change the fundamental permissions and obligations that pertain to the use of OGC).

If WotC licences their SRD in a different fashion, it would be up to them to declare whether or not they intended that other licence to be an authorised licence for section 9 purposes. As per my previous paragraph, I think that would be necessary but not sufficient to make it an "authorized version" of the OGL v 1.0/1.0a.

I also reiterate that the above is put forward relatively tentatively. There may be different feasible interpretations, based on an argument that under section 9 licensees have granted WotC a far greater power to vary the rights that govern all the mutual interlocking contracts and licences that constitute an OGL ecology. But I have not seen anyone try to actually develop an alternative analysis along those lines.

 

[Prime_Evil]

An "authorised licence", under section 9, is a licence that is published with the specified authority (ie by WotC or its designated agent) and that constitutes a "version" of the OGL v 1.0/1.0a. Not too far upthread I've indicated my view (somewhat tentative, but not completely unreasoned) as to what some of the constraints are that a licence must satisfy to count as a version (eg it might change obligations to do with product identity, but probably couldn't change the fundamental permissions and obligations that pertain to the use of OGC).

If WotC licences their SRD in a different fashion, it would be up to them to declare whether or not they intended that other licence to be an authorised licence for section 9 purposes. As per my previous paragraph, I think that would be necessary but not sufficient to make it an "authorized version" of the OGL v 1.0/1.0a.

I also reiterate that the above is put forward relatively tentatively. There may be different feasible interpretations, based on an argument that under section 9 licensees have granted WotC a far greater power to vary the rights that govern all the mutual interlocking contracts and licences that constitute an OGL ecology. But I have not seen anyone try to actually develop an alternative analysis along those lines.

FATE has been dual licenced for a while under both the OGL and a Creative Commons licence. I suspect that the owner of the IP has the power to make two offers to licence their IP and let the licensee select which one they prefer. Or does this fall afoul of the restriction in the OGL about adding any additional terms or restrictions? My suspicion is that the contract isn't formed until the licensee selects one offer or the other, so this clause doesn't come into play until then. Is this the correct reading?

 

[Prime_Evil]

I found the email archives of one of the two open gaming foundation mailing lists.

ogf-l

www.mail-archive.com

This looks like it is a gold mine of information about the intentions and public representations of the founders of the OGL. It may be invaluable for some arguments.

 

[Enrahim2]

WotC offers to licence its SRD on the terms set out in the OGL v 1.0a (read together with WotC's declarations of OGC and product identity). Parties enter into a contract with WotC by publishing in the terms set out in the OGL, thereby (as per section) 3, indicating their acceptance of the offer. This is what makes WotC a party to the contract. Which is the whole basis of the argument, widely advanced by multiple posters in this thread, that WotC has no unilateral power to revoke the licence it has granted to the parties it has contracted with.

Thank you! Howecer only expands/fixes a bit on one of my side points. What I wanted explained what was wrong was the reasoning leading to my bolded conclusion. Pointing out that wizards could cause a lot more damage than others if they exersise some power of revocation that any contributor have is irrelevant as far as I can see? This part was also mostly a motivation to see closer on the powers formally granted wizards, and it was this that leead to the discovery that "version of OGL" is most naturally understood as dead text that could plausably change "autorized" status without (significantly) altering the state of any existing agreements based on that text. In other words The 1.0a text no longer being authorized would not imply any actual agreement getting revoked trough any automatic legal mechanism.

 

[Enrahim2]

Wizards is a Contributor of OGC though…

Yes, i am aware, as should be aparent from the post you replied to. So your point was?..

 

[FrogReaver]

Yes, i am aware, as should be aparent from the post you replied to. So your point was?..

That whatever you were trying to say was too convoluted if you had to rely on the notion of a hypothetical where WOTC was not a Contributor to the OGC, when they actually were.

 

[Enrahim2]

Not too far upthread I've indicated my view (somewhat tentative, but not completely unreasoned) as to what some of the constraints are that a licence must satisfy to count as a version (eg it might change obligations to do with product identity, but probably couldn't change the fundamental permissions and obligations that pertain to the use of OGC).

I didnt quite catch what was the basis for envisioning liitations. Was it the consideration that a requirement should be that the notion of using material under a different license make sense? Interestingly GPL has a very similar clause to 1.0a section 9, but there they feel the need to specify that it should be "similar in spirit". Given how extremely restricted GPL is, it is almost surprising that term would be needed, if it is possible to infer constraints based on cross lisence use enablement considerations. So curious if you can clean up your reasoning

 

[Enrahim2]

That whatever you were trying to say was too convoluted if you had to rely on the notion of a hypothetical where WOTC was not a Contributor to the OGC, when they actually were.

Yeahm those two first paragraphs came out a bit random. It is first in paragraph 3 that pst is really starting to get a proper direction, the start was just flow of thoughts motivating the deep dive into section 9. Turns out clearly distinguishing "version of this license" as the dead, copyrighted text that can be used as the basis for an agreement from the agreements with associated licenses based on that text can be quite iluminating

 

[kjdavies]

And yes, WotC could choose to settle its affairs under the OGL 1.0a with Paizo in a manner that was to the advantage of Paizo - and to the disadvantage of everybody else. I don't think it's helpful to go down that road and feed that "settlement conspiracy" here, but sure, it's possible.

I understand from social media that Paizo is a tad incensed by this. I saw a post along the lines of "Erik Mona was absolutely on fire at an all-staff meeting today... news to follow".

I suspect Paizo could sell out, but it would have to be a very attractive offer... and I sense that if they did their customer base would go up in flames.