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

[Steel_Wind]

Right, this is BY FAR IMHO the most likely scenario, 1.1 will simply lack a 'or other version' clause, or it will be an 'or newer version' clause instead, and it will contain a 'you must cease to distribute under any content under other versions of the OGL' clause. WotC can absolutely do THAT. And they can then only ever release anything under the 1.1 OGL terms ever again, and utilize their Section 9 right to effectively stop letting people directly license from them under 1.0a even for 5e stuff. I just assert that doesn't destroy OTHER CONTRIBUTORS rights to still do so WRT to currently 1.0a OGL licensed material.

The point emphasized above is true, but only technically true. The devil is in the details of the meaning of "you".

The problem is that "you" is a corporation, and so "you" is a paper creation involving a minute book and some corporate documents. It doesn't ordinarily mean the people, skills, money, or even the associated marks behind that particular "you". The party bound by the contract (the "you" referred to above) is a different entity in law with that of another corporate "you", which is a different corporation that wasn't directly involved in the 1.1 OGL. So there becomes a 1.1 publishing corp and a corporate affiliate that is a 1.0a publishing corp, and the legal/commercial objective of stomping out the 1.0a licensed work is not achieved.

Could you write a provision in an OGL 1.1 that attempts to look behind the identity of a single corporation, and focuses on its corporate affiliates, officers, directors, shareholders and guarantors, and licensed marks or other trade-name or branding in terms of who is caught by the word "you" when entering into the new agreement?

Long Answer: Yes.
Short Answer: Ya.

These commercial terms, while not "standard form" are nevertheless so common, I am used to reading them in the context of agreements involving closely held corporations. (In Canada, the term of art used for a truly separate "you" is "at arm's length" and involves reference to a definition in our Income Tax Act). That is a feasible approach in most jurisdictions. THAT would give a new OGL some real teeth.

 

[AbdulAlhazred]

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.

Yeah, but this is why I argue that the OGL is a TERRIBLE license. Go read the GPL (any version really) and it is INCREDIBLY clear about this! It EXACTLY defines the relationship between the parties and what happens when someone accepts a GPL application, when they modify it, when they combine it with another work, and describes the 'viral' nature of the license in exact terms. So a question like this could NEVER ARISE under the GPL! However, with the OGL and its crappy articulation, the argument is quite commonly made that there IS NO SUB-LICENSE and that the OGL represents an agreement between you and WotC alone and gives them complete and total control over the duration of their participation in the license, even to the point where they can now 'unmake' the whole OGL entire. No such question/risk could arise under the GPL, or the CC licenses, etc.

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.

Except it never says there are 'sub-licenses' (except in IIRC section 13 where it seems rather inconsistent with the rest of the license text). I mean, I actually AGREE with you that this is the effective structure, but it is not spelled out and that is a very dangerous situation to be in when some lawyers are breathing down your neck.

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.

Yeah, again we agree, Ryan and Peter fully intended the OGL to be an irrevocable commitment of essential aspects of D&D into a common pool of material that anyone could use without fear of it ever disappearing. Unfortunately their actual license text appears to fall far short of the standard of incontrovertibly doing so. I guess in their defense the state of the art in open licenses was less developed than it is today 23 years later.

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.

Yes, but did it? The question at hand is not what the intent was 23 years ago, but what WotC can practicably threaten people with in court TODAY if they so choose.

 

[overgeeked]

This is why I put in a ticket ahead of time requesting my account be deleted. I do not trust WotC not to do something sneaky. I provided the information they requested on Thursday, but I have not heard back. I’m guessing account deletion is a manual process.

Same. I did that this morning.

 

[Sanji Himura]

The point emphasized above is true, but only technically true. The devil is in the details of the meaning of "you".

The problem is that "you" is a corporation, and so "you" is a paper creation involving a minute book and some corporate documents. It doesn't ordinarily mean the people, skills, money, or even the associated marks behind that particular "you". The party bound by the contract (the "you" referred to above) is a different entity in law with that of another corporate "you", which is a different corporation that wasn't directly involved in the 1.1 OGL. So there becomes a 1.1 publishing corp and a 1.0a publishing corp, and the legal/commercial objective of stomping out the 1.0a licensed work is not achieved.

Could you write a provision in an OGL 1.1 that attempts to look behind the identity of a single corporation, and focuses on its affiliates, officers, directors, and shareholders, and licensed marks or other trade-name or branding in terms of who is caught by the word "you" when entering into the new agreement?

Long Answer: Yes.
Short Answer Ya.

These commercial terms, while not "standard form" are nevertheless so common, I am used to reading them in the context of agreements involving closely held corporations. That is a feasible approach in most jurisdictions. THAT would give a new OGL some real teeth.

Also another point about this is that while WotC can absolutely say that (insert language that makes 1.0a unauthorized), there is language in 1.0a that absolutely prevents them from doing that.

You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

This implies to me that they can certainly TRY to impose 1.1, and they could do to new work, stuff that was already published under 1.0a can't be stopped from being distributed under any circumstances.

 

[Steel_Wind]

Also another point about this is that while WotC can absolutely say that (insert language that makes 1.0a unauthorized), there is language in 1.0a that absolutely prevents them from doing that.



This implies to me that they can certainly TRY to impose 1.1, and they could do to new work, stuff that was already published under 1.0a can't be stopped from being distributed under any circumstances.

Let me be very clear about this in a plain and unambiguous manner:

Can WotC enter into an agreement with a party, wherein the terms of that new agreement, rights that could otherwise be exercised under another prior contract, even if expressed to last until the end of time itself, be declared to be at an end?

Yes it can. 100% FOR SURE.

You can ALWAYS amend a contract by express agreement, provided the parties have the capacity to enter into a new contract.

ALWAYS.

Always is a Big Word in law and I am using it intentionally here to make a significant point so that any potential misunderstanding is dispelled. It doesn't matter what another contract says if the new contract you willingly enter into says something else about the other contract in clear language. Unless there is some independent reason that would prevent the old contract from being terminated or modified (a statute, legal inability to enter into a contract, or some other over-riding issue that goes to the root of contractual capacity) then you can ALWAYS do so. Contracts are contracts, they aren't Constitutions of a sovereign state. If the parties consent to do so, they can be routinely amended. Always.

 

[bmcdaniel]

However, with the OGL and its crappy articulation, the argument is quite commonly made that there IS NO SUB-LICENSE and that the OGL represents an agreement between you and WotC alone and gives them complete and total control over the duration of their participation in the license, even to the point where they can now 'unmake' the whole OGL entire. No such question/risk could arise under the GPL, or the CC licenses, etc.

I note you indicate that you are not making the argument that the OGL 1.0a represents an agreement between WOTC and the licensee. However, anyone who makes this argument simply has not read the OGL 1.0a: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." Contributors is defined as "(a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;"

Its not clear to me who the "Contributors" would be in the context of any use of Open Game Content. Possibly it could mean everyone (who is a copyright/trademark holder) that has contributed Open Game Content under OGL 1.0a. Possibly it could be restricted to those persons that have contributed Open Game Content under OGL 1.0a that is actually being used by the licensee.

However, under any interpretation, if a licensee is using material from both WOTC and Paizo designated as Open Game Content OGL 1.0a, then OGL 1.0a does not represent an agreement solely between WOTC and the licensee.

To repeat myself: 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.

 

[Sanji Himura]

Let me be very clear about this in a plain and unambiguous manner:

Can WotC enter into an agreement with a party, wherein the terms of that new agreement, rights that could otherwise be exercised under another prior contract, even if expressed to last until the end of time itself, be declared to be at an end?

Yes it can. 100% FOR SURE.

You can ALWAYS amend a contract by express agreement, provided the parties have the capacity to enter into a new contract.

ALWAYS.

Always is a Big Word in law and I am using it intentionally here to make a significant point so that any potential misunderstanding is dispelled. It doesn't matter what another contract says if the new contract you willingly enter into says something else about the other contract in clear language. Unless there is some independent reason that would prevent the old contract from being terminated or modified (a statute, legal inability to enter into a contract, or some other over-riding issue that goes to the root of contractual capacity) then you can ALWAYS do so. Contracts are contracts, they aren't Constitutions of a sovereign state. If the parties consent to do so, they can be routinely amended. Always.

I should have clarified something, and something did get lost in the transition from brain to fingers:

WotC can most certainly have agreements that overwrite prior contracts. The point that I was trying to make is that things that were made under 1.0a that were previously published should not cease to be distributable just because there is a new license that overwrote the old agreement.

However, I think that we both agree that court intervention can and should be required to sort the mess out.

 

[kjdavies]

This has been a very illuminating discussion and I've learned a lot. Thank you everyone for taking part and sharing your wisdom, knowledge, and weird interpretations with me.

I see several ways this might turn out: how I hope, how I think it should, how I think it will, and how I hope it doesn't.

It's like worrying about the weather: I believe I cannot do anything about it, so struggling to predict it is not bringing me peace, it is stressful.

Instead, time to put my energy into deciding what I will do if it is sunny, if it is cloudy if it rains, and if it snows.

(bowing out of the conversation... thanks all!)

 

[Clint_L]

A question for lawyers: how would you even begin to frame what game elements can be copyrighted and what cannot in the case of a game as complicated as D&D?

Like, I think we all get that concepts such as rolling dice and taking turns cannot be copyrighted. But how do you draw the line between uncopyrightable gameplay mechanics and, say, character creation? And how does a court rule on something like that without having a really intimate knowledge of the game? I can see how you could explain Monopoly in a court proceeding, but explaining Dungeons and Dragons?

Basically, I am wondering if it is even possible to determine where the line between protected and unprotected game content would be drawn.

Would the most salient law be drawn from video games?

 

[AbdulAlhazred]

I think it depends....
If WOTC is suing you, it doesn't cost you all that much to take it to court. They are the ones that pay the fees to file the lawsuit and submit most of the motions etc... The defendant has to pay for their legal representation and costs like transportation and so forth. If you have cheap representation or choose to represent yourself, it doesn't cost all that much to get the case into court on your side.

You are sadly mistaken here... They can drag you into court every week, maybe several times a week, for months at a time, force you attend conferences and mandated arbitration hearings, demand endless discovery, try to subpeona everyone under the Sun you work with, and then drag the proceedings out for months and years, all while a cloud of doubt hangs over your business. They can make motions for summary judgement, dismissal, ask for interim restraining orders stopping you from doing business, etc. etc. etc. This all gets very expensive and eats away any value your business has. It is TYPICAL for these sorts of cases to take years to reach resolution, years of paying retainers, fees, and hourly rate charges for lawyers. These are also, often, FEDERAL cases, because copyright is Federal law, which increases the complexity and potentially opens things up to nasty strategies like suing you in New York when you are based in L.A. Care to fly to NYC every other week? Yeah, I don't think so... (I mean, sure you can fight that, YET ANOTHER legal battle!).

Most folks that get sued don't want to go to court, and some of the things you might want to do to stop it from happening can indeed cost money, filing various motions and the like if you are happy to carry forward to the trial, not so much. (Obviously, there is a time commitment required and that may well have a big financial opportunity cost.)

WOTC has to spend a lot more to sue you than you have to spend to defend yourself, but they also have a much better chance of kicking your ass if you don't have some stellar legal counsel. That said, I'm pretty sure if you were the test case for the whole industry, you could probably find some folks willing to chip in for your defense, enough to get decent counsel for the trial and to make sure you follow the correct steps in the process.

I don't think you will find many companies that want to do this, and I don't think WOTC will want to go after some small fry who can afford to say, "naughty word it, my new job is to win this court case and I've got almost nothing to lose here even if they win."

Don't hold your breath. WotC can put aside $2 million, which is not a lot of money for a big company and beat you to death with it. Once you've been pounded into dust, the rest of the industry is VERY unlikely to go down the same road, they will cave. They won't support you in the first place either, because then they've alienated WotC themselves, and to no advantage. At best it is risky AND expensive for them. I guarantee you are going to fork out more money than a house in Seattle costs, just to START mounting a defense. I mean, there MAY be a very small select number of RPG community people who are wealthy enough to do that, but not many. Most likely you are 90% on your own.