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

[pemerton]

No, the material as presented in the PHB, MM, and DMG is not OGC. You can't source it from there. It can only be sourced from the SRD.

Just to add to this: OGC is not a label that pertains to certain copyrighted material in virtue of its content. It attaches to that material in virtue of its status within a particular contractual licensing regime. WotC's publication of the rulebooks that you mention has nothing to do with that regime.

This creates interesting theoretical questions. Suppose (i) I reproduce a section of the SRD that is OGC for which a licence in terms of the OGL is offered by WotC, as per the notice affixed to the SRD, and (ii) the particular bit of the SRD I reproduce is also found word-for-word in one of those rulebooks, and (iii) I don't include a copy of the OGL in my work, nor a clear notice as to what in my work is OGC.

In that scenario, am I infringing WotC's copyright in its rulebooks? Or breaking my contractual obligations under the OGL? Or both?

I think - without being definite about it - that the answer depends on the factual question of what my intentions and beliefs were when I reproduced the text. If I believed I was entitled to do so by the OGL, and that I was exercising permissions under a licence granted by WotC, then I think that (at least) I'm in breach of contract. If I was ignorant of WotC's offer to license the work under the terms of the OGL then I don't see that I can be in breach of contract, and my liability is confined to copyright infringement.

I describe this as a theoretical question because I can't imagine a practical context in which this would not be resolved via negotiation between the parties, with the upshot being either the withdrawal of the offending work (perhaps with a payment to WotC also) or else a cure of the work as envisaged in section 13 of the OGL. (Assuming that WotC accepts that the OGL remains effective in respect of its SRD content - so let's suppose my example is occurring a couple of years ago!)

 

[pemerton]

The word “Use” (of OGC) is being used (by some) in the sense of being sufficient for the OGL (taken as a contract which, when accepted issues a license) to be accepted and a license issued. Section 2 specifies a condition which is a requirement of the agreement. I take that to mean that even though WotC “Uses” OGC per 1g, they don’t satisfy section 2, which means they haven’t accepted the OGC and the terms of the OGL (taken as a contract) don’t apply to them.

Unless they have actually satisfied section 2. The prevailing view says isn't the case.

Whose offer are you imagining WotC to be accepting?

I have only heard of two occasions of WotC becoming an accepting (as opposed to offering) party to the OGL: the 3E-era Unearthed Arcana, and one of the 3E-era MMs. On those occasions, as far as I know (ie I'm not aware of any additional legal agreements between the parties), WotC accepted the offer in the same way as any other party (ie by using - in the sense of copying and selling in their own work - other contributors' OGC), and came under the same contractual obligations as any other party.

 

[pemerton]

You are trying to argue that a party can enter into a private law agreement, at time zero, with another entity that doesn't even exist at that time. But you can't point to any legal principle that explains how that would work.

You are trying to argue that licenses can be created over IP that doesn't exist yet. You haven't explained how you think that works, by reference to any legal principles.

But doesn't section 4 do exactly that? If not as a pool, at least individually? Doesn't each Contributor implicitly agree to, at future point in time, to an as of yet unknown new User, to grant them a license?

I don't know what you mean by "a pool, at least individually".

Putting that to one side, section 4 does not create any agreements between non-existent parties, nor any licences over non-existent IP.

Under section 4, the offeror/grantor (X) confers a suite of permissions (summed up in the definitions of Use, Distribute and Derivative Material) in relation to the OGC whose use constitutes the accepting party's (Y's) entering into the contract. Note that both X and Y actually exist - a non-existent party can't engage in the conduct set out in section 3 that constitutes acceptance of an offer.

Under section 4, the accepting party (Y) agrees to use the OGL, which means that Y comes under duties in relation to other parties' Product Identity and also come under a duty to offer to license their copyrighted work in the same was as the offeror has done. This is an obligation falling on Y, in respect of Y's actual work (ie the work that follows from Y's use of the OGC). If other actual parties (Z) take up that offer in the future (by engaging in the conduct spelled out in section 3), then Z will bring into being a contractual relationship with Y.

Y does not agree, at the time of acceptance, to an agreement with Z (who may not even exist at the time of Y's acceptance). Y agrees, at the time of acceptance, to make a standing offer to all the world. No legal relationship with Z comes into being until Z accepts that offer, which requires (among other things) that Z exist.

And a more general point: in my experience (which in relation to this topic dates back to 2008), most posters on these boards - and I include you and @FrogReaver in this category - do not have a firm grasp of, or at least do not clearly articulate, the difference between a present offer, which remains on foot, to enter into a licensing agreement with any party who wishes to take up that offer and a licensing agreement with all the world.

For practical purposes, for most of the OGL's history, that difference has not mattered because no party has suggested that they might cease to keep their present offer on foot. But as has now become clear, once one of the parties changes its mind about that then the difference may turn out to have quite a degree of practical importance.

 

[pemerton]

Isn't the grant of a license a private law agreement?

Yes. And it can't come into being except between existing parties. In the context of the OGL, sections 2, 3 and 4 tell us how it happens - one party (the contributor) makes an offer to the world to enter into the agreement, and the other party (the licensee) accepts that offer by using the contributor's OGC. This can't occur between non-existent "parties".

 

[pemerton]

Does it change anything that Wizards published Unearthed Arcana under the OGL, and included material from 3PP (Swords of our Fathers from The Game Mechanics and Mutants & Masterminds from Green Ronin)? This was not released as an SRD, but as a genuinely OGL book release.

In a couple of posts I've stated that I expressly bracket that fact.

And yes, as per my post not far upthread that is WotC accepting an offer from those parties. What precise legal obligations it places on WotC in relation to their own OGC - and in particular, to what extent it obliges them to offer that to all the world - is not entirely clear. But I'd expect Paizo to have received legal advice about this, given that PF draws from that same pool of 3E-era OGC!

FOOTNOTE:

The reason I say it's not entirely clear is because the contractual network has an atypical circular character.

Normally, the OGL-created ecology looks like this: WotC => A, B, C etc => X, Y Z etc. It's links in an evergrowing chain or network. In this typical case, if X purports to refuse to offer to license their work to all the world, they potentially put A in breach of A's contractual obligations to WotC.

But the examples you mention look like this: WotC => A, B => WotC. To the extent that this creates "obligations" owed by WotC to itself, it can waive them. Hence why it's different from the typical case.

My intuition is that WotC - unless it reaches some further deal with A and B - remains obliged to offer to license its SRD to them, but probably not to the rest of the world. Again, I'd expect Paizo's lawyers to have a better idea about this than my intuition!

 

[pemerton]

The idea that WotC, in publishing its SRD, is "abiding by" or "complying with" section 2 of the OGL is not well-formed.

Suppose that WotC published its SRD, included a notice that "Permission to copy, modify and distribute the files collectively known as the System Reference Document is granted solely through the use of the Open Gaming License, Version 1.0a" but then did not include any indication as to what material is OGC, and did not include a copy of the OGL itself.

This would not put WotC in breach of any obligation. Rather, it would make WotC's offer incoherent - because the offer contains statements (ie a reference to the OGL v 1.0a) which imply that the offer will contain other things (like a notice of OGC, and a copy of the OGL), but in fact the offer does not contain those things.

What effect this sort of incoherence in an offer would have on the capacity of a willing party to accept the offer is a further question. The law of contract has well-developed methodologies for rectifying infelicities in contracts (eg parties contract by exchange of documents, and X years later someone discovers a difference in the exchange documents). Those methodologies are very facts-and-context sensitive.

But whatever would follow in the circumstances I described, it wouldn't be the case that WotC is breaching any obligations. It can put out whatever sort of offer, coherent or incoherent, that it likes!

 

[FrogReaver]

pretty selective quote, did you stop after the first word because you liked it so much?

No idea what you are talking about.

@Maxperson said the section Wotc wasn’t fulfilling was section 2 of the OGL due to not containing a notice with the required statement. I showed they did actually attach such a notice to their OGC.

He then agreed by saying correct.

Are you asserting that their notice doesn’t conform to the requirements of section 2? If so that causes even bigger issues for those who have used WOTC’s OGC material as without that notice none was actually OGC.

Or maybe you are asserting something else entirely?

 

[pemerton]

@Maxperson said the section Wotc wasn’t fulfilling was section 2 of the OGL due to not containing a notice with the required statement. I showed they did actually attach such a notice to their OGC.

He then agreed by saying correct.

Are you asserting that their notice doesn’t conform to the requirements of section 2? If so that causes even bigger issues for those who have used WOTC’s OGC material as without that notice none was actually OGC.

I don't think it's as straightforward as this to work out what would be the effects of a less-than-fully coherent offer on WotC's part.

 

[mamba]

No idea what you are talking about.

@Maxperson said the section Wotc wasn’t fulfilling was section 2 of the OGL due to not containing a notice with the required statement. I showed they did actually attach such a notice to their OGC.

He then agreed by saying correct.

He said a lot more than that

Correct. Granted by WotC solely through that license to other people. They are not bound by that and clearly do not follow it.

it said the exact opposite of what you wanted, I assume you know what they say about 'yes, but' sentences...

Are you asserting that their notice doesn’t conform to the requirements of section 2? If so that causes even bigger issues for those who have used WOTC’s OGC material as without that notice none was actually OGC.

yes, it does not conform to section 2, because they are not a licensee under section 2. They included it in the offer because how else would a licensee even get that license text...

If you still haven't figured that part out yet, despite 10 pages of people telling you in various ways, then I guess all that is left to do is not engage any further

 

[Hussar]

As a general proposition (and not worrying about possible nuances), only a party to the contract can sue on the contract.

But making a party to the contract aware of their breach is not initiating any sort of legal action. It is just bringing about a state of affairs that then triggers certain consequences under section 13, which expressly states that termination is automatic if certain states of affairs arise.

But, as a practical matter, if it's not enforced, who cares?

If I notice that Bob's Book is in breach, and I email Bob about it, then what? Unless WotC decides to step in and get involved, nothing is going to happen.

Heck, there were numerous early D20 products that were pretty clearly in breach. And nothing happened. Even the 3e Hypertext SRD included stuff that wasn't covered under the OGL - IIRC something about Star Wars was copied from the Unearthed Arcana (I could be wrong about the specifics, but, I do know that there was something or other in breach). And it never mattered. Everyone knew it was in breach but, since it was never enforced, who cares?