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

[GMforPowergamers]

There are several state legislatures where the line is basically non-existent.

not to vere too far off but yes I agree

 

[robconley]

Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.

First, the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

This is false. There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

Sorry while I am not a lawyer, I am also a software developer who uses open source software and content since the early 90s. The case law behind open source licenses like the Artistic License or the GNU Public doesn't support this interpretation. See Jacobsen v. Katzer.

Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions. Free to be used by any subsequent parties provided the terms and conditions of the license are met.

The reality is that intent counts as well as the letter of the license or contract. The courts are not going to ignore the fact that Wizards repeatably stated that the license can not be revoked. This was one of the early concerns that was clarified by Wizards when asked.
I talk to enough lawyers to know that the whole idea behind open content is foreign. That the law is meant to be adjudicated between two self-interested parties. Has trouble dealing with altruistic behavior. But the folks who made the first round of open licenses were pretty savvy about this and designed the licenses in such a way that the stricter copyright law is and the more rigid contract law becomes, the stronger their license becomes. The OGL was patterned after these licenses and share their strengths.

I recommend people who want to be educated about open licenses contact either the Free Software Foundation or the Open Source Initiative.

Front Page — Free Software Foundation — working together for free software

www.fsf.org

Home Page

The Open Source Initiative in the news

opensource.org

 

[Bolares]

And all are mutually exclusive... As if it was done by deception, trickery and vaguely formulated statements. Everyone likens lawyers to devils, but seems Fey is more appropriate.

I link Snarf to bards...

 

[overgeeked]

I find it hard to believe that a cost-conscious Hasbro would bother going after all of them, especially once someone goes Hacker Manifesto on them and puts something out anonymously, explicitly written to both use new terminology and genuinely be impossible to retract.

This is probably the best, easiest, and safest way forward. Put out a close enough but legally-distinct clone of the rules. And release it under Creative Commons.

 

[Bacon Bits]

So i figured Wizards might come at this from this angle, and looked into it a bit, and i came across this casetext

The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

casetext.com

Does this matter to this case at all? Im genuinely curious. I feel this is where the idea the OGL was irrevocable.

My guess would be that it depends on if "perpetual" qualifies as a "set duration". Is a "set duration" one of a fixed duration with a start and end point, or is it one of an explicitly specified duration which might include an unending license?

 

[mhd]

This is probably the best, easiest, and safest way forward. Put out a close enough but legally-distinct clone of the rules. And release it under Creative Commons.

The "legally-distinct" part might be rather hard, though. Wouldn't it be easier to get an already D&D-esque system to open up? Not sure whether "Why didn't you sue them because they're too similar in the last 30 years?" has any legal merit…

Dear Kevin Siembida…

 

[DavyGreenwind]

Sorry while I am not a lawyer, I am also a software developer who uses open source software and content since the early 90s. The case law behind open source licenses like the Artistic License or the GNU Public doesn't support this interpretation. See Jacobsen v. Katzer.

Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions. Free to be used by any subsequent parties provided the terms and conditions of the license are met.

The reality is that intent counts as well as the letter of the license or contract. The courts are not going to ignore the fact that Wizards repeatably stated that the license can not be revoked. This was one of the early concerns that was clarified by Wizards when asked.
I talk to enough lawyers to know that the whole idea behind open content is foreign. That the law is meant to be adjudicated between two self-interested parties. Has trouble dealing with altruistic behavior. But the folks who made the first round of open licenses were pretty savvy about this and designed the licenses in such a way that the stricter copyright law is and the more rigid contract law becomes, the stronger their license becomes. The OGL was patterned after these licenses and share their strengths.

I recommend people who want to be educated about open licenses contact either the Free Software Foundation or the Open Source Initiative.

Front Page — Free Software Foundation — working together for free software

www.fsf.org

Home Page

The Open Source Initiative in the news

opensource.org

Now there's an interesting case! I just read it. I believe it is relevant, but does not quite hit the mark. In that case, the licensor sued the licensee for breaching the license, or publishing outside the scope of the license. That case is about publications before the license is revoked. Their statement that "a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract," would only apply during a period of time in which an open license is not revoked.

If it was otherwise, the simple creation of an open license would be basically the same as relinquishing their copyrights forever.

Which, who knows, it might be the case. I have yet to find any cases addressing what would happen if someone tried to revoke an open license. But based on the way existing law works, I am unconvinced that the OGL is irrevocable.

 

[S'mon]

Sorry while I am not a lawyer, I am also a software developer who uses open source software and content since the early 90s. The case law behind open source licenses like the Artistic License or the GNU Public doesn't support this interpretation. See Jacobsen v. Katzer.

Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions. Free to be used by any subsequent parties provided the terms and conditions of the license are met.

The reality is that intent counts as well as the letter of the license or contract. The courts are not going to ignore the fact that Wizards repeatably stated that the license can not be revoked. This was one of the early concerns that was clarified by Wizards when asked.
I talk to enough lawyers to know that the whole idea behind open content is foreign. That the law is meant to be adjudicated between two self-interested parties. Has trouble dealing with altruistic behavior. But the folks who made the first round of open licenses were pretty savvy about this and designed the licenses in such a way that the stricter copyright law is and the more rigid contract law becomes, the stronger their license becomes. The OGL was patterned after these licenses and share their strengths.

I recommend people who want to be educated about open licenses contact either the Free Software Foundation or the Open Source Initiative.

Front Page — Free Software Foundation — working together for free software

www.fsf.org

Home Page

The Open Source Initiative in the news

opensource.org

Indeed (thanks Rob!) and it seems to me there must be many billions of software dollars riding on this issue, probably more than the value of D&D. So if it has to go to court, WoTC won't necessarily even have the deeper pockets.

 

[Vaalingrade]

So in terms of what is actual legal language is 'deauthorizes' legal language?

 

[S'mon]

Sure. We have at least three lawyers, including a PhD who apparently teaches law to baby lawyers on here...and they're all disagreeing about what this means and what will happen.

So again, whatever's said here doesn't matter and it's clearly not binding in any meaningful way. It all comes down to someone with the money and time to actually fight a long legal battle in court against Hasbro. Until there's something akin to a settled case on this, WotC will still be able to bully people into not publishing or accepting their poisoned-pill GSL 2.

"I need ammunition, not a taxi!"

I think if 3PPs stick together and refuse to be intimidated, this is going to go away. Nobody should be left alone vs Hasbro when everyone is in the same boat here.