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

[S'mon]

I don't have time to refute this point-by-point (given that I have actual work to do for clients), but the above, while not false, is extremely misleading.

For the non-lawyers out there: whenever you see the word "license" in this context you should interpret it as "permission to use." So, it is 100% correct to say that if person A gives person B a license (permission to use) some property or entitlement of person A, the license (permission to use) does not itself create an irrevocable right for person B to continue to use the property/entitlement. Or to put it differently, a mere license can be revoked by the licensor.

However, if person A and person B reach an agreement pursuant to which person A grants person B a license (permission to use) some property/entitlement of person A, then person A can revoke the license only pursuant to the terms of the agreement.

This is the difference between: (1) "I grant you permission to attend a dinner party in my dining room at 8 pm tonight" (mere license - revocable at will by the licensor); and (2) "If you sign this document and pay me $5, I grant you permission to live in the bedroom of my house for one month" (license to use land embedded in an agreement - not revocable by licensor except pursuant to the agreement). In context, this makes intuitive sense. If the user does not pay for the use of the land, there is no agreement, and the licensor can revoke the license. However, if the user does pay for the use of the land (and there is an otherwise valid agreement), then the licensor cannot unilaterally revoke the license.

Bringing this back to the OGL: this is why it is important to establish whether the OGL is an agreement. If the OGL is not an agreement, but is a mere license, then it can be revoked at will by the licensor. If the OGL is an agreement, then the license embedded in the agreement can be revoked only to the extent permitted by the agreement.

Cases and commentary that reference a license but which do not involve an agreement are completely beside the point. As a practical matter, people (including courts) often conflate a mere license and a license embedded in an agreement because (in context) it is clear what is under discussion. However, citation to caselaw or commentary that discusses the revocability of a mere license does not say anything at all about a license embedded in an agreement.

As noted in my prior post, the OGL has all the hallmarks of an agreement, i.e. an offer, a specified method of acceptance and a description of consideration. (Legal capacity of parties and illegality are not at issue).

Accordingly, a proponent of the view that WOTC may unilaterally revoke the OGL must take one of two positions:
1. Either the OGL does not constitute an agreement between WOTC and the user; or
2. The agreement constituting the OGL permits WOTC to unilaterally revoke the license.*

[* For the sake of completeness, this would include the position that the OGL agreement is revocable because the license failed to use "magic words" such as the word "irrevocable." Sometimes, legal agreements do require certain precise words for their meaning, such as in the creation of a power of attorney or the conveyance of land in certain states. Although I am willing to be convinced otherwise, a brief review of two copyright treatises (Epstein on Intellectual Property and Goldstein on Copyright), I believe that there no such magic words needed to license intellectual property. Instead, the scope and revocability of a license to use copyrighted materials is subject to ordinary principles of contractual interpretation.]

For what it is worth, the law, including law relating to contracts and copyright is almost infinitely complex and nuanced. There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post.

The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

Cheerio

Again, thanks very much for this. Good to have it from a US contract lawyer who clearly knows his stuff.

 

[pemerton]

One thing I was wondering about is the sublicensees bit. It reads as if anyone using the OGL "down the line" would be covered. So if I put out a product after WotC "de-authorizes" 1.0/a, but I used OGC from someone else who did publish prior to that point, I would therefore be a sublicensee of that person/content, so I'd be covered.

That's the suggestion that @S'mon and I (and some others) have been entertaining. I think it's open (as in, not obviously wrong) but not certain:

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.

 

[pemerton]

Question. Would the money WOTC receives from all third party sales on DMsGuild be considered compensation? (edit: I don't know all terms WOTC set out for publishers to sell on the DMsGuild).

Products sold on DMG are published under a different licence, not the OGL.

 

[GMforPowergamers]

Products sold on DMG are published under a different licence, not the OGL.

that is the other thought... will that ALSO change for 1D&D

 

[Greg K]

Another question. The leaked 1.1 OGL listed specific items that WOTC claims were not intended to be covered by the 1.0a, but some lawyers and others have pointed out that the 1.0a faq specifically ok'd some of those items and even told licensees how they could do it. If WOTC was misleading regarding those items (intentional or not) in the 1.1, could it result in a judge questioning the veracity of their argument to revoke/deauthorize 1.0a? (not sure how well I phrased that last part).*
*Obviosuly, what we saw might not be the final draft and WOTC has stated they might make changes based on community response.
(edit: added clarification in first sentence that it is WOTC claiming that some items were not intended to be covered by 1.0a)

 

[Clint_L]

Does it need to be pointed out that Hasbro/WotC employ very good contract lawyers?

A lot of these assumptions about alleged "leaks" and so forth are basically gossip. We don't actually know what is going on, and it is likely that much/most of what folks are responding to is wrong or taken out of context. For example, I enjoyed reading the post explaining the difference between a license and an agreement. I didn't know any of that, because not a lawyer. But I'm pretty sure that Hasbro's lawyers will be quite familiar.

There has been a rush to assume ill intent on the part of various entities, but I do not feel confident rendering any kind of judgement. I'm not qualified to do so, and there are virtually no solid facts available even if I were. But I do not think that the professionals involved are not aware of the potential complexities of the OGL, and I have very strong doubts that what is actually going on bears much resemblance to the assumptions that are being made on forums like this.

 

[pemerton]

Another question. The leaked 1.1 OGL listed specific items that were not intended to be covered by the 1.0a, but some lawyers and others have pointed out that the 1.0a faq specifically ok'd some of those items and even told licensees how they could do it. If WOTC was misleading regarding those items (intentional or not) in the 1.1, could it result in a judge questioning the veracity of their argument to revoke/deauthorize 1.0a? (not sure how well I phrased that last part).*
*Obviosuly, what we saw might not be the final draft and WOTC has stated they might make changes based on community response.

If WotC has changed its mind about what sorts of works it wants to license, it is entitled to offer a new licence on new terms. As far as I can see, there is no obstacle to it making the revocation of prior rights under prior licences a condition of entering into the new licence. (EDIT: I assume that US contract law, in its various jurisdictions, protects to some extent against unconscionability in commercial transactions. But I don't see how what WotC is proposing would count as unconscionable.)

I don't think the idea of WotC being "misleading" has work to do here. The issue of what the current OGL licenses is a matter of interpretation, and past statements by WotC may be relevant to that (either as informing the interpretation of the terms of the OGL, or establishing further rights outside the OGL itself on the basis of reasonable reliance).

I don't see that the matters in my two paragraphs above are legally related, in the sense that I don't see how it burdens WotC's entitlements I describe in the first paragraph that it loses an argument about the matters I discuss in the second paragraph.

But there is a practical connection, in the sense that uncertainty over the stuff in the second paragraph may give a publisher/content producer a reason to enter into a new licensing agreement with WotC.

 

[pemerton]

I do not think that the professionals involved are not aware of the potential complexities of the OGL, and I have very strong doubts that what is actually going on bears much resemblance to the assumptions that are being made on forums like this.

The posts from @bmcdaniel are excellent, in my view.

 

[Greg K]

I don't think the idea of WotC being "misleading" has work to do here. The issue of what the current OGL licenses is a matter of interpretation, and past statements by WotC may be relevant to that (either as informing the interpretation of the terms of the OGL, or establishing further rights outside the OGL itself on the basis of reasonable reliance).

This is what I was inquiring about. WOTC is now claiming that certain things were not intended to be covered despite evidence to the contrary in the FAQ and people relied on the FAQ, If a lawyer shows that, despite WOTCs claims to the contrary, the FAQ states that people were authorized to use OGL 1.0a in additonal ways, may a judge be more inclined to use the FAQ to determine intended interpretation of terms regarding deauthorization and reasonable reliance.

 

[bmcdaniel]

Does it need to be pointed out that Hasbro/WotC employ very good contract lawyers?

A lot of these assumptions about alleged "leaks" and so forth are basically gossip. We don't actually know what is going on, and it is likely that much/most of what folks are responding to is wrong or taken out of context....

This is about right.

It is possible that WOTC could take a position that has very limited legal strength such as the OGL 1.0a being revocable. In any business, management has final say over the lawyers, and its possible that WOTC management will take the position that OGL 1.0a is unilaterally revocable despite contrary advice from lawyers in order to spread fear, uncertainty and doubt. However, its unlikely that they would do so because by doing so they risk a declaratory judgement (from a motivated population!) that would actually undermine their intellectual property rights. For example, they would be risking a judgement that clarifies, contrary to their interest, the scope of non-copyrightability of game mechanics in the context of complex games like TTRPGs.

My own view is likely that the language that has been circulated regarding the revocation of OGL 1.0a either (a) would apply only to persons who accept and use OGL 1.1, or (b) was a "trial balloon"/early draft that will not ultimately be adopted. Thats not a legal conclusion; thats a probabilistic view of behaviour based off of public evidence that I've seen.

In any event, it behooves everyone not to get too emotionally invested in any particular facts until WOTC clarifies what their position is.