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

[pemerton]

Does the OGL 1.0/1.0a's creation and promotion to be useable by 3rd parties for their own non-derivative works just as much as those creating works that were based on D20, have any bearing here?

If the OLG was strictly for the licensing of D20 or other WotC material, then surely being able to kill the earlier version makes sense, however, the OGL was never only just that, others created work from scratch (as much as any RPG can be, post-Blackmoor and the 1974 D&D rules) have been using the OGL to make their own games open. WotC authored the license but surely can't nullify those designers' and publishers' use fo the OGL. Can they?

I think you're running two distinct things together.

For my earlier post on this issue, see #479 upthread.

In brief (hopefully!): there is a difference between the OGL as a text, which is copyright WotC, and hence which can only be reproduced with WotC's permission; and the OGL as the terms of a contractual agreement between (at least) two parties, where that text states those terms.

When we talk about revocation of the licence, we are talking about the second thing, ie, about the terms of a contractual agreement. Can that agreement (the terms of which are stated in the text of the OGL) be revoked?

The possibility of WotC denying that other publishers have a right to use their copyrighted licence text is a real one. It seems obviously hopeless in the case of parties who have licence agreements with WotC, as they are required by WotC to reproduce the text as a licence condition, and hence are clearly permitted by WotC to do so.

When it comes to parties who are not in a licensing agreement with WotC, but are using the OGL text to establish their own licensing and OGC ecosystem, the basis for their permission is not as straightforward, but probably exists. My post 479 explains why I think this.

 

[pemerton]

I believe if a publisher (1) uses material not designated as Open Game Content (i.e. possible copyright infringement) and then (2) designates that material as OGC, that would be a breach in a case where the court affirmed the copyright infringement.

Yes, that would be correct. Because (as you note) they would lack the authority to contribute that section 5 requires them to have.

This is very likely IMO where a publisher plays fast and loose with what is actually in the SRD and is then lazy with their OGC declaration, "All game mechanics are designated as Open Game Content."

Without pressing you to name names, how common is this?

I don't know the 3PP world very well, especially the last 15 years or so of it. I have some 3E-era stuff - from Monte Cook (whose OGC declaration looked sound to me, when I gave one a quick look-over the other day), from Necromancer (I assume they're in order), from Atlas/Penumbra (ditto), from whoever published Wonders Out of Time (seems professional), from Mongoose (ditto), I think Chaosium (dunno how compliant they would be), and then some stuff from more obscure publishers (at least to me) that I've never reviewed but wouldn't necessarily rely upon for accuracy in technical legal details!

I guess it almost goes without saying that the more careless 3PPs have been in their licence compliance, the more vulnerable they are to being sued by WotC. And as I said my sympathy in these cases is limited: if you're going to publish under a licence, you need to take your licence obligations seriously.

 

[Sanji Himura]

See, here's the only possible issue that I see with OGL 1.1. It doesn't allow 30 days to cure whatever breaches that WotC will CAUSE by saying that 1.0a is an unauthorized document under 1.0a. Even if you are going with 4e as a base of your OGL content, if WotC says that 1.0a is no longer an effective agreement, you do not get 30 days to cure the conversion to 1.1.

1.1 was alleged to have taken from the date that it was supposed to go public, Jan 4th to the effective date, Jan 13. 9 Days is not enough time to cure those alleged breaches that WotC are causing by making 1.0a an unauthorized document under 1.0a.

 

[pemerton]

@Steel_Wind

Thanks for the post, which makes sense.

(The remedy issue in Australia is a bit vexed. In this sort of case I think there would be a plausible argument that WotC would be held to the assumption. But running it as a contractual interpretation argument would be a sounder way to do it.)

 

[pemerton]

See, here's the only possible issue that I see with OGL 1.1. It doesn't allow 30 days to cure whatever breaches that WotC will CAUSE by saying that 1.0a is an unauthorized document under 1.0a. Even if you are going with 4e as a base of your OGL content, if WotC says that 1.0a is no longer an effective agreement, you do not get 30 days to cure the conversion to 1.1.

1.1 was alleged to have taken from the date that it was supposed to go public, Jan 4th to the effective date, Jan 13. 9 Days is not enough time to cure those alleged breaches that WotC are causing by making 1.0a an unauthorized document under 1.0a.

I don't think that OGL v 1.0a can declare itself to be an unauthorised licence. Because if it's unauthorised, it is of no legal effect - including in respect of its own status. Nor would there be any licence breaches to cure, as there would no longer be a licence.

 

[Greg Benage]

Without pressing you to name names, how common is this?

I wouldn't even begin to guess, and honestly, I wouldn't be qualified to really make judgments anyway. I think probably...not that uncommon.

But it's just also completely uncertain, at least to me, what a court would find to be copyright infringement. Are the character creation rules in Pathfinder close enough to 3.5 to be found, on one or more counts, to be copyright infringement? And are character creation rules designated as OGC? Are they in the Pathfinder SRD? I don't actually know.

I love Basic Fantasy. Would anything in it, starting with but not limited to character creation, infringe on B/X? If so, its OGC declaration is: "The entire text as well as all maps and floorplans incorporated in BFRPG (except the Open Game License, as noted above, and the Product Identity License, below) is Open Game Content, released under the Open Game License, Version 1.0a (reproduced below) as described in Section 1(d) of the License." So if there's any copyright infringement, there's also breach of the license agreement.

 

[AbdulAlhazred]

"De-authorise" doesn't mean anything in the abstract, and I would be very surprised if that phrase appears in v 1.1. (It is not part of the leak that I saw: We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!).

If v 1.1 describes v 1.0/1.0a as not an authorised licence agreement, that will have meaning only in the context of the rest of the contract, which will explain the significance of a licence being authorised or not authorised.

Trying to guess what terms WotC will actually insist on is commercial speculation, not legal speculation. From the legal point of view, they could do what you suggest, or they could make it a requirement of entering into the new licence that a party cease to distribue any work licensed under the current OGL. I don't see that either would pose any legal problem.

Here is the whole problem with the idea of WotC having any power to 'de-authorize' earlier versions of the OGL. I enter into the OGL 1.0a agreement between myself and "the Contributors" (section 4), which is defined as everyone who ever put content under the OGL (section 2). Furthermore I UNILATERALLY have the option to decide which version 1.0, 1.0a, 1.1, etc. of 'authorized' (by WotC presumably) version of the OGL (IE its a genuine OGL, they get to make that determination, but they cannot 'unmake' it) I am receiving/giving my rights under. 1.0 and 1.0a do not speak of any power of WotC to rescind the license, and once other Contributors begin distributing the OGC under either of those licenses, they -literally as a fact- cannot 'undistribute' it anymore.

I can simply, at any time now, claim my rights, by abiding by OGL 1.0(a), to distribute that content, and as a fact I have said content, because it has long since been distributed to me by other Contributors as part of their exercise of the same rights. That's it, as long as I don't choose to use 1.1 and whatever 'deauthorize logic' is in it, that license doesn't exist in reference to my rights and obligations. I never have to even read it, or be aware of it. WotC can say THEY now choose to use it, but the cat is already out of the bag! This is EXACTLY HOW PETER ADKINSON INTERPRETED IT. In his and Ryan Dancy's own words, repeated many many times in many places this is the interpretation intended by the authors of the license, and the interpretation that was accepted by the other Contributors, plain and simple. The license is intended to be, and is stated to be, 'perpetual'. Its rights and obligations exist 'in perpetuity', which is a time period without end. Only failure to abide by the terms, or the finding of the whole license as legally invalid, would end them (and only WRT the specific parties and/or jurisdictions).

Furthermore, even if WotC actually believes that the OGL can be 'revoked' and existing license holders severed from it, what stops these holders from asserting either laches (WotC 'slept on its rights' and thus harmed them by not asserting this 20 years ago), or that WotC is estopped from even making a claim in court that the license asserts such a right, because they have asserted otherwise for 20 years (these types of assertions are complex and somewhat overlapping in fact). OGL is also a bad license in that it talks about the copyright of the LICENSE, but it never clearly discusses the copyright of the MATERIAL THAT IS LICENSED. So there may be issues of what is called 'waiver' involved. Normally a good contract/license (see the CC Org licenses) includes a 'non-waiver clause' which specifically states that the copyright, and all other rights, to the licensed material remain with the original holder. OGL doesn't specifically do that, which is OK in a general sense, but weakens the overall force of the thing and might cause some doubt as to exactly what the terms actually are.

This is all just more of the general argument, do not use the OGL! Even the 1.0a OGL is a BAD LICENSE. It wasn't well written to start with, and aside issues of WotC being privileged, stands a much lesser chance of actually working correctly than a CC license.

 

[Sanji Himura]

I don't think that OGL v 1.0a can declare itself to be an unauthorised licence. Because if it's unauthorised, it is of no legal effect - including in respect of its own status. Nor would there be any licence breaches to cure, as there would no longer be a licence

Then honestly, if that's true, then content that originally was released under 1.0a should then be allowed to be modified at the very least under 1.0a. I honestly don't think that WotC can deauthorize 1.0a for existing works, only for new ones.

 

[pemerton]

@Greg Benage

The 3.5 SRD has ability scores, races and classes, but not rules for character creation as such.

The 5e SRD seems pretty similar in these respects.

For character creation, I think you need to (i) write it without reference to WotC's copyrighted texts (or anyone else's, for that matter, if they're not licensed to you), and (ii) be sure that it's not infringing. You don't want to violate your authority to contribute; you also don't want to infringe someone else's copyright!

 

[Steel_Wind]

They would want to argue 1 - ie we revoked, hence there is no licence, hence the reproduction of our SRD or a work derived from it infringes our copyright (and if the publisher has the SRD in their section 15, they will be hard-pressed to contest the factual element of the complaint). The publisher will plead the licence in their defence. And this is where the issue of unilateral revocation will be worked out.

This contractual approach misses the real teeth that the OGL 1.0a has always had, and that's if that if somebody uses the 1.0a licence to create something, others can then use THAT licensed OGL work as the premise for its further sublicensed derived work. And because you can't take that valid sublicense right away under the OGL 1.0a under the termination clause - you can't take it away by a declaration or unilateral revocation, either. WotC is stuck with those ongoing valid sublicensed works, moving forward through time.

So WotC can modify (or terminate) the OGL going forward as to how it might apply to a work that was never released under the OGL or SRD. But that doesn't get them out of the ongoing rights of others to use what has already been released under the OGL 1.0a hitherto and declare its work as derived from that -- and those rights continue to spawn new sublicensing rights in the future. Those sublicense rights and may not be suspended or stopped. The OGL is not static.

Practically speaking, if a game system uses a D20 and there is any attempt at all at broad-brush compatibility with prior editions, it becomes functionally very difficult to escape the ongoing future reach of any OGL 1.0a product to be used to continue to publish compatible products into the future.

If that makes the word "perpetual" sound a whole lot like "irrevocable", that's because that was always the intention behind it. Hasbro bought WotC in 1999. The OGL came out after that event, when those corporate officers in charge of D&D at WotC knew that later management teams at WotC would inevitably come to see the OGL as something they would at that future point in time want to escape. The OGL was drafted in a manner so as to make that practically impossible.

Remember, the OGL was a virus that WotC created in ~2000 at a time when its prior version of the game had COMMERCIALLY FAILED and the prior owner of the IP became insolvent. In order to focus the entire RPG business into embracing 3.0, WotC willingly infected itself with the OGL virus -- and then spread it to the entire industry. The incurability of that virus was not a bug -- it was a deliberately crafted "feature" and marketed on that basis. It worked.

Everyone knew that at some point, new management at WotC would try to undo it. When they moved from 3.xx to 4E, WotC did just that with the GSL in 2008. Commercially, it didn't work. WotC relented with the SRD in 2014, but now appear to be trying to go down that road again. None of this is a surprise, all of it was foreseen by the sub-license language in the OGL that it would inevitably occur at some future point in time.

The OGL was drafted to make the virus incurable. It was marketed to the industry on that basis. The fact it is a incurable virus should not be seen as a contractual oddity, but as a commercial success.