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

[Xyxox]

We disagree

I agree with you. They likely cannot. By using the verbiage that OGL 1.0a is unauthorized, it would specifically apply to anything released under the OGL 1.1 license based upon everything I've seen, meaning that nobody can release anything covered by OGL 1.1 under OGL 1.0a because section 9 of that license cannot be applied as that license is not authorized for "open" content released under OGL 1.1. I believe this is a CYA for moving forward so that new content must abide by the terms of OGL 1.1, similar to how under the GSL you gave up the rights to release the content under the OGL.

Furthermore, I do not believe the WotC C-level leadership has any understanding how pulling such a move with D&D 4E was devastating to desired sales and growth of that product and more than anything else, hindered the success of that product. Had it continued under the same model, you would have never had a Pathfinder and it would have been far more successful. Overall, it was not a bad product, but the licensing held it back from the heights and growth reached by 3.0/3.5, This bears out after releasing 5E under OGL 1.0a as demonstrated by the growth of that product.

And really, the OGL 1.0a accomplished something Hasbro could have never done alone. It allowed smaller creators to produce the niche products that would have never produced the profit margins or desired revenue for a company so large, but fulfilled itches that needed scratching by the community as a whole and further drove sales of core products. Bottom line, the Crunch is where a Hasbro/WotC experiences large revenues/profits and the Fluff comes at too high a cost with too low of a volume to be meaningful to the bottom line of a Hasbro/WotC, but fulfills the needs of medium creation companies to small and independent creators. A single creator that produces a product with a single year profit of $50K is good for a basement creator, but would never see the light of day for a Hasbro/WotC. There is a two way quid pro quo in the OGL 1.0a.

 

[Xyxox]

This US contract lawyer is currently agreeing with everything I've said


One thing he just pointed out is that the OGL says sub-licences shall survive termination of the original licence. He also agrees that 1.0 doesn't look to be revocable, and was clearly 'authorised'.

I think it can still be considered unauthorized for any content released under OGL 1.1, which is what I believe the lifted portion of the leak is actually doing. In other words, ANY content released under OGL 1.1 would not be authorized to be released under OGL 1.0a. I think that is the entire point of this. I think when it's finally released, WotC will admit they cannot revoke OGL 1.0a but they can control how licensing works with content released under OGL 1.1 and they can make all prior versions of the OGL unauthorized with regards to content released under OGL 1.1. Furthermore this would apply to any 3pp content released under the OGL 1.1, meaning if Thirdguy Press releases The Wonderworld of Amazement under OGL 1.1, it can NEVER be released under OGL 1.0a after as that is an unauthorized version of the OGL with regards to OGL 1.1. However, if OGL 1.2 comes out in 2026 and they want to re-release The Wonderworld of Amazement under OGL 1.2, then it would be an authorized version of the OGL to release under.

 

[pemerton]

But the OGL 1.0a was not intended to only be used by commercial publishers. It was intended to be used by anyone, including casual fans with no legal training. WOTC’s current fan content policy recommends the use of the OGL for game content.

Considering the intended audience, statements in an FAQ are very likely relevant.

I don't think those non-commercial users will be arguing that they have rights protected by an estoppel.

 

[pemerton]

Let's not forget, this is not some "technicality". This is decades of reasonable commercial reliance.

I've read the whole of your post. My take-away from this particular bit is that it is not just the FAQ that you are pointing to in your argument for reasonable reliance. Which makes sense to me.

 

[S'mon]

I have already provided many citations throughout my arguments. But anyway, here are more:

Here's a quote from a fabulous article on the subject that really drives my point home:

"The contract theory of license also creates obstacles and confusion in other contexts. Some copyright owners - as exemplified by the open-source and Creative Commons movements - wish to grant nonexclusive licenses to large classes of users with whom they cannot bargain and from whom they seek no payment in return. 21 Contract law provides an ill-suited basis for such dealings. 22 For their part, members of the public who understand licenses to be contracts are also likely to believe (erroneously) that their use of copyrighted works is restricted only by express license terms and only if they expressly agree to be bound by them."
ARTICLE: A License Is Not a "Contract Not To Sue": Disentangling Property and Contract in the Law of Copyright Licenses, 98 Iowa L. Rev. 1101, 1107

Looks like Lexis' UK version https://www.lexisnexis.com/uk/ doesn't have that article, and the US site won't let me log in

 

[S'mon]

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.

Yes, this is my feeling - it's certainly possible that WoTC management could send their lawyers into battle with a weak case, but it seems unlikely they'd risk going as far as a judgement. I've seen a lot of cases settle last minute when one side called the others' bluff. Often the result, the settlement, is better than previously offered terms.

On the last point, I agree, but the chilling effect is inevitable. Whatever happens now, WoTC have already damaged both the 3PP ecosystem and their own reputation, I think.

 

[S'mon]

Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly

I wish you were right, but unfortunately I believe you are wrong.

By the misfortune of having studied law, I have a wide network of attorneys in my contacts. I already consulted with one of the top IP lawyers in the United States about this issue and the situation is grim. The attorney I spoke to is personally familiar with Hasbro and he said that Hasbro's litigation war chest is absolutely huge and they are out for blood. He said to expect them to litigate to win back their IP rights with a courtroom battle lasting 3-4 years. I asked him if I could fight back with a $100,000 GoFundMe and he literally laughed. He said it would cost $500,000 simply to get through pre-trial motions and $2-3M to see it through to completion. Hasbro will utterly bury any opponent in motions. The expense alone makes it impossible for anyone at all to fight this except the likes of Paizo. He stressed this over and over in the call: It doesn't matter how good my argument is because I will never get to make that argument. I'll be bankrupt before then.

Moreover, Wizards doesn't even need to litigate. It just needs to persuade Kickstarter and DriveThruRPG that the bread is buttered on their side. Then they can simply have my game, Pundit's game, anyone's game they don't like, shut off from the crowdfunding and distribution we need to be viable. They can do the same on YouTube, just as music companies and Nintendo do, on anyone they want to tread on. We already know how platforms behave in the face of corporate bullies. It will happen in our industry, too, if we're not careful.

I asked what my options were, given this dire situation, and he said "try not to let them notice you." Well, they've already noticed me. "Release anything you can before the new license drops." Well, what about my future product? "Never use the OGL and SRD again in the future and hope they don't care enough to sue you anyway."

The attorney I spoke to is a gamer, has impeccable credentials, and is a trusted friend of 20 years; he has no reason to lie to me or dissuade me. So, based on the advice of the best expert I know, I believe the situation is quite dire. I wish it were a case of crying wolf, but there is literally a wolf and it's here to feast.

I wish I had better news but that's the cold splash of water I got in my face yesterday.

If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'. I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s. The reputational damage to WoTC would be even greater than what TSR suffered. I think the actual economic effect on WoTC would be almost as devastating as that suffered by their victims. The parrallel of Russia's invasion of Ukraine comes to mind.

 

[jgbrowning]

Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly

I wish you were right, but unfortunately I believe you are wrong.

[snip]

I sincerely hope that this is not the case.

joe b.

 

[Aldarc]

It's okay to say "I didn't know that" or "I never considered that" as part of an online discussion. The Olympic Judge from Austria won't deduct marks from your perfect score of 10 for saying so.

Don't tempt me!

 

[Nikosandros]

Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly

To put some levity in this rather grim developments, I'll point out that when people on rpg.net and therpgsite generally have the same sentiment about some issue, you indeed know that the End Times Are Nigh!