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

[Deadmanshand]

I have a question for the lawyers here. The legality of de-authorising the OGL is in doubt, but what about revoking SRD 5.1? Can they choose to leave OGL 1.0(a) alone, but revoke SRD 5.1 and replace it with an extremely bare bones 5.2 that effectively revokes the OGL?

 

[Maxperson]

Just because they are walking away doesn't mean that Wizards may not attempt to kneecap them anyways, especially if they can luck into an expansive ruling. Wizards can always say their stuff is too close anyways, and if they can get a ruling that benefits them in that manner, that just makes things more costly for Paizo.

You're missing the point. WotC has to go up against Paizo directly to affect Paizo if they switch away from the OGL. It doesn't matter if WotC goes against anyone for using OGL 1.0a or not. Paizo can just wait and pay the millions IF WotC ever goes after them. There's no incentive for them to pay for someone else.

No, that there isn't precedent against Paizo doesn't mean that there isn't precedent. If that happens, Hasbro will absolutely use that case against them and Paizo will be stuck trying to point out how it doesn't apply. That's a worse position than not having to make that argument in the first place.

Then they wait for WotC to come after them and fight it then. Why waste money on someone else's fight that has nothing to do with Paizo?

 

[Maxperson]

I would not be confident in that conclusion. For one thing, non-parties can inform and argue point through amicus briefs. Bit also, I don't think it would be too hard for Paizo to intervene as a party. For example, 3pp might make a counterclaim against WOTC, which Paizo might join in. I think this would especially easy if 3pp is using the nee ORC license spearheaded by Paizo.

Yeah. I know about amicus briefs. I almost brought those up, but they don't make you a party in the case. You aren't really walking into the case. You're just filing a "Hey, I agree or disagree with the case in front of you and here's my argument why or why not."

Having not personally seen them used, about how often do amicus briefs influence a case?

 

[Justice and Rule]

You're missing the point. WotC has to go up against Paizo directly to affect Paizo if they switch away from the OGL. It doesn't matter if WotC goes against anyone for using OGL 1.0a or not. Paizo can just wait and pay the millions IF WotC ever goes after them. There's no incentive for them to pay for someone else.

No it doesn't. There are two things here that you don't seem to get.

The first is that moving away from OGL takes time: While they can declare that they are moving away from it, they can't just do that instantly. It will take months to create the ORC, and in that time Wizards can still attempt to do things.

And even if the ORC is created, that doesn't mean that Wizards still can't go after them. They still might decide that some of their stuff is "too close". The original OGL provides a solid defense against that as long as it holds. When it comes to big corporations, you are better off having more defenses rather than less, and the OGL is a big one as long as you make sure it holds. Giving up on it because "it costs money" misses that it could cost you more if you don't.

Then they wait for WotC to come after them and fight it then. Why waste money on someone else's fight that has nothing to do with Paizo?

They are more likely to come after them if they think they can win. They are more likely to win if they can build precedent. These things aren't won overnight, and if WotC puts effort into building the foundation while Paizo is twiddling their thumbs in the background, they can absolutely do damage. This is why it's bad form to let these sorts of cases go.

 

[Matt Thomason]

I have a question for the lawyers here. The legality of de-authorising the OGL is in doubt, but what about revoking SRD 5.1? Can they choose to leave OGL 1.0(a) alone, but revoke SRD 5.1 and replace it with an extremely bare bones 5.2 that effectively revokes the OGL?

Not a lawyer, but SRD 5.1's permitted usage is solely because of OGL 1.0(a)* There does not appear to be any way they can remove the OGL communities rights to SRD 5.1 other than by preventing its further use under OGL 1.0(a), and that requires alterations to the terms of the OGL, not to the SRD.

* - By which I mean the ability to use it verbatim. As discussed pretty much everywhere else, they cannot protect the rules within it via copyright, only the expression of the rules. We all have the right to clone any rules we wish as long as we do so without infringing copyright or trademarks.

 

[glass]

By the arguments being made that I'm seeing though, you'd think that everything has changed. It hasn't. Nothing has changed as I type this. No one signed anything. No one has published anything yet. Everything is still in discussions.

"Nothing has changed"? Yes it has. They took off the mask. They cannot just put it back on and expect us to forget what we saw behind it.

 

[Justice and Rule]

"Nothing has changed"? Yes it has. They took off the mask. They cannot just put it back on and expect us to forget what we saw behind it.

I think it's perhaps more accurate to say that nothing about the situation has materially changed, but rather our perception of the current situation has. There is a lot of talk about what people are about to do, but all that takes time. However, WotC has shown us what they want to do and that very much does change things, especially in how we react to their moves.

 

[Deadmanshand]

Not a lawyer, but SRD 5.1's permitted usage is solely because of OGL 1.0(a)* There does not appear to be any way they can remove the OGL communities rights to SRD 5.1 other than by preventing its further use under OGL 1.0(a), and that requires alterations to the terms of the OGL, not to the SRD.

* - By which I mean the ability to use it verbatim. As discussed pretty much everywhere else, they cannot protect the rules within it via copyright, only the expression of the rules. We all have the right to clone any rules we wish as long as we do so without infringing copyright or trademarks.

I mean why not? Was there an original SRD 5 prior to 5.1? I don’t have the OGL in front of me, but I don’t remember a clause in it regarding authorisation or revocation of the SRD. In fact didn’t SRD’s come out after the OGL?

 

[Maxperson]

The first is that moving away from OGL takes time: While they can declare that they are moving away from it, they can't just do that instantly. It will take months to create the ORC, and in that time Wizards can still attempt to do things.

What does ORC have to do with dropping the OGL stuff? Those are two different things. They can remove their OGL stuff in days or weeks if they want.

And even if the ORC is created, that doesn't mean that Wizards still can't go after them. They still might decide that some of their stuff is "too close".

What part of, "They would wait until WotC comes after them." was I unclear about? Yes, if WotC comes after them for being "too close" they will have to fight. That will be a different fight than what the small creator is fighting, though. There's no incentive for Paizo to hand millions of dollars to a small company to fight a fight that isn't theirs.

The original OGL provides a solid defense against that as long as it holds. When it comes to big corporations, you are better off having more defenses rather than less, and the OGL is a big one as long as you make sure it holds. Giving up on it because "it costs money" misses that it could cost you more if you don't.

So you think it's better to throw millions of dollars into a fight that isn't yours, rather than let that case settle out of court and then millions more to fight your own fight IF WotC comes after you?

They are more likely to come after them if they think they can win.

It's not the same case. Even if WotC goes to trial and wins, and it's very, very unlikely to make it to trial, that win won't really affect Paizo. Paizo isn't trying to use the OGL 1.0a, so a decision that OGL 1.0a is off limits doesn't mean much. WotC has to come after them for the different issue of being too close to OGL 1.0a.

 

[Matt Thomason]

I mean why not? Was there an original SRD 5 prior to 5.1? I don’t have the OGL in front of me, but I don’t remember a clause in it regarding authorisation or revocation of the SRD. In fact didn’t SRD’s come out after the OGL?

The SRDs are released with a copy of the OGL attached. In that combination, the OGL is the bit that grants rights to reuse it. The SRD itself does not grant permission to use it.

The concept of "revoking the SRD" has no legal meaning, it'd be like me saying "I revoke oxygen", there's nothing to revoke, it grants no legal rights or obligations to anyone, it just exists as a copyrighted piece of work. They cannot delete copies of it from existence (other than the ones they themselves hold), because it's out there, in the wild, in multiple copies, all released under the OGL. They can remove it from their website, and I can just put it up on my website for everyone to reuse, because the OGL gives me the right to do so.

The only part of the SRD that has any legal basis is the OGL at the back of it, which is the thing that grants us the right to use the Open Game Content within.

To put it another way, if you take the SRD to a Judge during a trial over its usage, the only bit they cares about reading (other than to see if text from it was used) is the OGL pages at the back, as that's the only bit that has anything to dispute.

Yes, I think there may have been a 5.0, there was also a 3.5 and a 3.0, none of which are invalidated by later releases. If you want to go dig up the 3.0 SRD, the OGL at this moment in time still allows you to use that rather than 5.1