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

[pemerton]

Could downstream publishers have a case against upstream publishers sign v1.1, breaching their Section 13 responsibilities?

My analysis you quoted answers this: no, if the downstream publisher has a v 1.0/1.0a licence from WotC; yes, if they don't.

 

[Prime_Evil]

It won't kill the OGL if no one becomes a party to v 1.1.

I think this is the critical point. We need to spread the word about the dangers of accepting the terms of v1.1. We also need to watch carefully for sneaky attempts to bind people to the new OGL via clickwrap agreements on DnD Beyond and similar outlets. I'm sure some people will accept the new terms, but we need to minimise the potential fallout.

 

[pemerton]

I would slow down on that one. We have yet to see an announcement and the plain text of OGL 1.1 in a form we can be certain about.

It is possible that a term which appropriates the IP in an OGL 1.1 released product to WotC could be held under the principles of Uber v. Heller as unconscionable. I'm not saying it is, or even that it is likely (indeed, I think it is unlikely)-- but I'm not closing the door on that one.

Fair enough. I was thinking of the Australian principles of Amadio and similar cases, which require establishing a special disability on the part of the party alleging unconscionability.

 

[pemerton]

I basically agree with you here, but I'm coming at it from the angle of somebody who has contributed OGC to an RPG not derived from any WoTC SRD. The collateral damage to these companies is substantial. But I suppose it will be easier to ensure upstream contributors do not sign up to v1.1 since it is focused on derivative works based on the WoTC SRD.

If I've parsed your last sentence correctly, I think I agree.

The issue for participants in your ecosystem will be if they also want to be part of the v 1.1 WotC-based ecosystem. I have no idea how big an issue that will be.

 

[S'mon]

All the arguments in this thread against the OP have been built around an understanding of the OGL as a contract. As well as section 4, you'll see that section 3 refers to offer and acceptance.

A licence is a relationship to property - roughly, a permission to use it while not actually getting any interest in it. When you have people over to your house, your are granting them a licence. (That's what makes them not trespassers.)

A licence can be granted gratuitously - as when you have your friends over - or can be granted pursuant to a contract. The OGL is clearly a contract.

@S'mon understands EU consumer protection law, I am guessing. But my own intuition is that a work is not faulty or defective simply because there is some confusion over the licensed rights it can confer. If you're buying a work in order to get the benefit of a licence that is offered in it, I'm not even sure that you count as a consumer!

If you are using the OGL you are not dealing as a consumer imo.

OTOH Civil Law jurisdictions have a requirement of good faith in business dealings. I think WOTC would be seen as having fallen severely short there.

 

[pemerton]

Civil Law jurisdictions have a requirement of good faith in business dealings. I think WOTC would be seen as having fallen severely short there.

My grasp of good faith is pretty weak. But I would think perhaps that these apparent exaggerations of the capacity of WotC to revoke licences, used to then encourage becoming a party to v 1.1, might fall short of good faith? And would this then be a basis for rescission by those particular parties?

 

[Jd Smith1]

Keep in mind that many games unrelated to WoTC IP adopted the OGL due to representations made by WotC about its universal applicability.

Ok. So? Were contracts signed? Or was it just assumptions made?

 

[Jd Smith1]

By another contract agreed to by both parties.

A lot of bad analogies are being thrown around. The Open Game License is not a marriage or a rental agreement. It's an open source license, a type of agreement that courts have become increasingly familiar with in the last 33 years. These licenses don't get torn out from the roots to eliminate the entire corpus of work that was created with them over the span of decades.

That sounds like emotion, not legal fact.

 

[S'mon]

My grasp of good faith is pretty weak. But I would think perhaps that these apparent exaggerations of the capacity of WotC to revoke licences, used to then encourage becoming a party to v 1.1, might fall short of good faith? And would this then be a basis for rescission by those particular parties?

You're asking how it would work across dozens of Civil Law jurisdictions when I'm not even French. I'm not going to attempt to answer that.

 

[Jd Smith1]

and the other bottom line is that ‘perpetual’ also meant ‘irrevocable’ back in 2000, and courts have upheld that for the GPL 2.0, which is a lot closer to what we are discussing here than a marriage

Close, maybe. But 'close' doesn't count.

But lets say this comes down to a court ruling. WotC can accept the costs of legal representation and an extended legal process. Who among the d20 splatbook community has tens of thousands of dollars for such a battle? There are regular threads here whining about how poor RPG writers are.