Thank you.
Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
OGL1.0a clause 2: "No terms may be added or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License"
Doesn't that mean they can't change or de-authorise the license?
In Open Source software, the creation of the GPLv3 didn't stop people from releasing under the pre-existing and less restrictive GPLv2. That's why both versions still exist.
Dias Ex Machina
Publisher / Game Designer
Revoking the original 3.5 OGL is going to open up a huge can of worms. I can see their belief behind revoking 1.0A, but the original 3.5?
Technically, couldn't you create a 5E product using the 3.5 OGL?
Take any two people, like my wife and I. Biologically quite opposite; but we share %99.5 of our DNA. 3.5 and all its derivative works still share so much with D&D, that it creates a very dangerous precedent if they can kill everything that was ever created by third-party develops ever.
Technically, couldn't you create a 5E product using the 3.5 OGL?
Take any two people, like my wife and I. Biologically quite opposite; but we share %99.5 of our DNA. 3.5 and all its derivative works still share so much with D&D, that it creates a very dangerous precedent if they can kill everything that was ever created by third-party develops ever.
@bmcdaniel
I enjoyed your post. I find it interesting that you conclude that section 13 is the sole basis for termination. I've thought that's a feasible argument but have not been confident enough in licensing law or general US contract law to form a conclusion.
I'm interested that you think the position of sub-licensees, following a revocation/termination of offer by WotC, is unclear. Are you prepared to elaborate a bit more on this? (I posted my own thoughts, less well-formed than yours, in post 130 upthread.
is more likely the case.
I enjoyed your post. I find it interesting that you conclude that section 13 is the sole basis for termination. I've thought that's a feasible argument but have not been confident enough in licensing law or general US contract law to form a conclusion.
Your points one to three are consistent with what I and some others have been posting.
I'm interested that you think the position of sub-licensees, following a revocation/termination of offer by WotC, is unclear. Are you prepared to elaborate a bit more on this? (I posted my own thoughts, less well-formed than yours, in post 130 upthread.
I share your view thatI strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR
is more likely the case.WotC can refuse to enter into a new licence (eg v 1.1) unless the would-be licensee waives whatever rights they have been granted under existing licences (like v 1.0/1.0a).
The 3.5 SRD was licensed under OGL v 1.0a, the same licence that WotC has used to licence the 5e SRD.
Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.
This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).
It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which is expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." I dont see any argument there is not an offer and acceptance. Sec 4 of the OGL recites the consideration for the agreement: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that WOTC is the party specifying the consideration. More generalky, usage of contract terms like offer, acceptance and consideration by WOTC demonstrates an intent to form an agreement with the licensee. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.
So long as an agreement is not illegal, a party cannot unilaterally terminate an agreement except to the extent that the agreement permits them to terminate the agreement. The sole statement relating to termination in the OGL is Sec 13 which states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."
The commentary to-date revolves around Sec 9 which states "Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation. First, a principle of contract interpretation is "expresio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement. Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.
Finally, aside from the contractual analysis there are equitable doctrines that make additional difficulties if WOTC advanced this claim. For example, there is a doctrine called "detrimental reliance" that says, even in the absence of a contract, if one person induces another person to change their position in reliance on a statement by the first person, the second person can reasonably rely on the statement. The WOTC Q&A by itself could support a claim for detrimental reliance. Other equitable doctrines such as "laches" and "unclean hands" would prevent WOTC from enforcing the OGL is they waited too long to enforce or acted inequitably. Again, the public statements by WOTC and its representatives would support a claim under equitable doctrines.
There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.
None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR
I agree with this analysis (which seems very good, thanks).
I agree WotC can revoke their offer to licence under the OGL 1.0, but AFAICT this should not affect sub-licencing of OGC, including of the entire (eg) 5e SRD, so very little practical effect. They may indeed have ceased to offer to licence the 3e SRD when they removed it from their site years ago, but that didn't affect those (already) licencing & (future) sub-licencing it.
No. You're not even purporting to use the licence, nor complying with any of the requirements it imposes on you.
Ok, I wasn't sure if Morrus had some rule about content posted on the site.
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