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

[pemerton]

Although I said it's not nonsensical on its face, there does appear to be a logical contradiction. Per the licence, a publisher has to offer WoTC OGC on the same terms they received it, so they cannot both abide by their licence terms in OGL 1.0 and also not re-licence the WoTC OGC they received under the licence.

If I try to abide by WoTC's claim to withdraw their OGC from re-licencing, I am in breach of my own obligations under the OGL. I'm not allowed to amend the OGL to change the licence.

WotC can relieve other parties of their obligations to it, including their obligations to offer OGC for sub-licensing.

If 3PP X has contractual obligations to 3PP Y to offer OGC for (sub-)licensing, but (i) that OGC would infringe WotC's copyright but for a licence, and (ii) is not covered by permissions conferred by section 4 (as per my mooted interpretation), then X is in a quandry.

The possibility of inconsistent contractual obligations is one reason against the interpretation I've canvassed. I don't think it's fatal. Of course it would defeat the viral character of the OGL, but that's already a consequence of the canvassed interpretation.

I reiterate: I am not factoring in any interpretive implications of the FAQ, conduct undertaken by WotC and its officers, etc. I am engaged in purely textual interpretation.

 

[clearstream]

So far, it seems like Hasbro are avoiding saying that any future content can be created under OGL1.0a. I read their note that

Your OGL 1.0a content. Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a.

If so, as others have speculated Hasbro could rely on no one daring to test that in court, or perhaps they have a legal theory in mind that gives them confidence. I've been thinking about the balance of commercial interests.

If 1D&D really is backwardly compatible with 5e, then any future 5e-compatible content that is created will perforce be compatible with 1D&D. Therefore, I must be picturing a future in which only Hasbro and those with separately negotiated licences from Hasbro will be able to create content for 5e.

That could be foundational to a subscription and micro-transactions driven business model. Because to feed that model I would picture sustaining a very rich content stream. Additionally, I might prefer not to see content released in forms that are more durable or distributed by means other than under my ongoing user licences to access (which would then also not be covered under any ToCs I attach to that.)

I think I would take this view if I had measured a total market size built upon my IP of which I am enjoying only a share. (And where that share is well short of 99%.) Other posters have raised a similar speculation. I would possibly also have to believe that digital modes of use will come to prevail over physical (or at least grow very significantly in share.) What might be on offer is a doubling of revenue, justifying the commercial risks.

I paid about $150m for DnDBeyond, which I think means I believe it is worth at least $1.5bn over the next ten years. So far as I can make out, Wizards digital products are presently about half the revenue of their "consumer products" (which I take to be physical), but the segment is growing at almost twice the rate. This dovetails with an assumption of under-monetization (which is a common experience as publishers catch-up with change in consumer behaviour.)

From a commercial perspective, I think Hasbro's contextual problems and opportunities, create strong pressure for change in the direction taken. This underlies some of my thinking about the morality of the situation. Hasbro's unethical actions (if that is how they are to be characterised) arise from a far broader problem for people - libertarian principles translated into company law and business contexts that drive corporate entities toward unethical behaviour. Without wanting to promote what-aboutery, the OGL is way down the list of ills this has and is causing for people.

 

[pemerton]

@clearstream I tend to agree with your final paragraph.

I think there is a related modest irony: the RPG world seems to have a number of participants who are broadly sympathetic to "Silicon Valley" libertarianism, and to the idea of "private orderings" that is part of that body of thought. This OGL issue is what private orderings look like when the commercially powerful parties within a private ordering start throwing their weight around.

 

[Staffan]

Yes, that matters to the hypertext SRDers. But I think that's probably a sideshow.

The key issue, once WotC accept that the licence remains on foot, is what is the scope of the permissions and powers conferred by section 4. And to me that seems to turn on the interpretation of the phrase the Open Gaming Content. (The term "use" is also important in that section, but its defined meaning seems so broad that I can't see how any of this is going to turn on its interpretation - except to the extent that its broad meaning helps provide context for making sense of the phrase "the OGC".)

Looking at d20srd.org, it is somewhat careless with its legalities (for one thing, they still have the d20 System logo up and I'm pretty sure that license has been withdrawn since at least 2008). A better site to use is probably dndsrd.net, which among other things includes this on its "Legal" page:

Permission to copy, modify and distribute the files collectively known as the System Reference Document (“SRD”) is granted solely through the use of the Open Gaming License, Version 1.0a.

This material is being released using the Open Gaming License Version 1.0a and you should read and understand the terms of that license before using this material.

The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, character names (including those used in the names of spells or items), places, Red Wizard of Thay, Heroic Domains of Ysgard, Ever-Changing Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.

All of the rest of the SRD is Open Game Content as described in Section 1(d) of the License.

More information on the Open Game License can be found at www.opengamingfoundation.org or www.wizards.com/d20.

The terms of the Open Gaming License Version 1.0a are as follows:

This tracks pretty well with what I recall seeing attached to the original SRD downloaded from Wizards' site (I'm pretty sure I have it downloaded at home, but I can't check now since I'm at work). So the OGC is not defined in the license itself, but in a document attached to/part of the SRD.

 

[mamba]

It is not the only issue. But if it was more explicit about what "authorized" meant, they would not be trying their current angle of attack. That doesn't mean that they could not come up with a different fig-leaf, but every angle of attack you close of make that more difficult (and therefore less likely to be tried, or to succeed if attempted).

if you show me a license you think has closed all holes, I’ll show you 100 lawyers who think otherwise

 

[FrogReaver]

What do you mean by "OGC is expandable"? OGC is not a thing that gets bigger or smaller. It's a category of copyrighted material - predominantly text - within a contractual licensing regime.

New stuff can be added to the OGC category at any time = expandable.

Here is the text of section 8:

If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content.​

That is not a definition of anything. It establishes an obligation on parties to the contract who distribute OGC pursuant to the OGL. It applies to the publishers of the Hypertext SRD, who contributes no new OGC, as much as to (say) Paizo, who does contribute new OGC.

You clearly don't understand my argument.

I think you just aren’t thinking far enough ahead.

Because of section 8 WOTC had to clearly identify the OGC from SRD 5.1. All other contributors do as well. Because of section 8 there is no question about what specific element is OGC and what isn’t. To me that’s defining OGC in the most clear terms possible.

There is also section 1(d) if you want a more formal definition. Though much less useful for practical considerations.

Here's a question for you. Here is the text of sections 3 and 4 (the emphasis is added by me):

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

​

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.​

Do the two italicised terms refer to the same thing, or not?

Clearly the same.

If they do, then the permissions and powers granted pursuant to section 4 are confined to OGC that a licensee uses.

I agree. Not sure I see any relevance but I agree.

I think an alternative construction is that the phrases are not co-referring, and that the phrase in section 4 refers to the OGC that occurs in the licensed work. That alternative construction is suggested by section 2, which says that

Which IMO is a much less plausible argument than deauthorization.

This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License.​

"Applies" is not a term of art, but one way that the licence can "apply" to OGC is to licence its use; and if that is what is intended, then the conferral of permissions and powers by section may pick up the reference in section 2 to any OGC that contains the relevant notice. This would mean, for instance, that if you publish a work that uses OGC from the SRD, then you enjoy section 4 powers and permissions in respect of the whole of the OGC (ie any OGC) that is found in the SRD.

The scope of the license and that clause is more local. The specific implementation mandates you include the contributors copyrights. If it’s as you say then you would need to constantly update your list. But you do not.

Thus, it’s local. But in practical terms it doesn’t matter since you would be able to take OGC licensed by Company A as contributor and more licensed by company B as contributor and use them together in your product C. OGC can be localized to a specific license and still accomplish everything desired.

You may wish that this third candidate interpretation is not correct. Perhaps its not. But the argument for it is not nonsensical. It's reasoned by reference to the text of the contract. That's how contractual interpretation works.

IMO it’s a worse argument than deauthorization. Which is where we started.

I do think the point you bring forth is Important as most of us up till now have treated any instance of OGL as licensing all things in the OGC category and that’s probably not the case. Practically it doesn’t really matter as far as I can tell though.

 

[robconley]

I would recommend looking at the other case you cited- Carson. Note that in Carson, the appellate court is overturning the district court's determination that there was consideration, and did this by looking at state law, to find that "any license ostensibly granted to Dynergy was revocable by Carson." Carson, 344 F.3d at 452.

The nuances matter the appeals courts holds

We decline to adopt the district court's conclusion that the monetary award, annual bonus, and promotion, none of which Carson received, were sufficient to establish consideration under Lulirama. To determine whether such non-received benefits can be deemed consideration in the context of an employee-at-will relationship, we examine Texas law. Under Texas contract law,

Carson v. Dynegy, Inc., 344 F.3d 446 | Casetext Search + Citator

Read Carson v. Dynegy, Inc., 344 F.3d 446, see flags on bad law, and search Casetext’s comprehensive legal database

casetext.com

In contrast in Jacobsen v. Katzer

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.

Jacobsen v. Katzer, 535 F.3d 1373 | Casetext Search + Citator

Read Jacobsen v. Katzer, 535 F.3d 1373, see flags on bad law, and search Casetext’s comprehensive legal database

casetext.com

Following this in Section II.A is a list of examples of why the open content is considered economic consideration by the appeals court.

In both appeals, the issue of whether there was economic consideration was crucial in determining whether the license was irrevocable or not. The different outcomes were a result of different circumstances. In Jacobsen v. Katzer where was an explicit license with explicit conditions.

To be clear the big problem here is taking this to the courts to be decided on the merits while avoiding a lucrative settlement. But as a legal debate then it is pretty clear cut to me that the OGL is irrevocable. Multiple factors, like intent, wording, case law, all work together to support this.

 

[Snarf Zagyg]

The nuances matter the appeals courts holds

Yes, which is why I specifically noted that it was incorrect to cite Carson.

In both appeals, the issue of whether there was economic consideration was crucial in determining whether the license was irrevocable or not. The different outcomes were a result of different circumstances. In Jacobsen v. Katzer where was an explicit license with explicit conditions.

To be clear the big problem here is taking this to the courts to be decided on the merits while avoiding a lucrative settlement. But as a legal debate then it is pretty clear cut to me that the OGL is irrevocable. Multiple factors, like intent, wording, case law, all work together to support this.

Two things-

1. First, as I have kept saying, the issue is whether the license is converted to a contract. Here is me saying this on January 5th. This isn't a revelation, this is how things are done and has been repeatedly stated now for two weeks.

Eh, I try to avoid definite statements. For example, I know that judges can, and do, make licenses irrevocable by construing them as a contract supported by consideration ..... given that there are mutual obligations, an actual termination clause, and the possibility of the proverbial peppercorn (not to mention the change in status), it's rather hard to say.

But who knows? It's all idle speculation at this point.

2. Second, this also turns on issues of state contract law. Again, something people keep overlooking in their certainty is that while we can talk about principles and even look at Restatement (2d) of Contracts, there is still substantial variation in state law especially on issues not covered by the UCC (as this would be). Given we do not know what jurisdiction this would be filed in, it's a little early to discuss the exact parameters of consideration.

 

[Scars Unseen]

I'd say that objectionable content was a non issue mostly because the OGL already prohibits you from using WoTC or others' trade marks to indicate compatibility, so there is no possibility of brand tarnishment.

I was talking more from how little the community would gain from such a clause compared to what we'd lose from WotC being allowed to deauthorize 1.0a, but yeah, that too.

 

[glass]

if you show me a license you think has closed all holes, I’ll show you 100 lawyers who think otherwise

Never said anything about closing "all" holes, just the ones we currently know about.