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

[Thomas Shey]

As I've repeatedly said, I'm an academic lawyer with an interest in analysing private law doctrines and relationships. And I think some of the discussion and calls for action around this OGL controversy have not been based on a really solid understanding of these things.

Well, it doesn't help that IP law is such a bog that not only can you get people who avowedly are knowledgeable in the related subject not be in agreement, that even a somewhat experienced layman can have trouble figuring out who to believe. I know enough to know that I wouldn't even take a general purpose business lawyer's word on it, and that's probably as far as most of them can go.

 

[Thomas Shey]

Because they want to sell their product?

I mean, nothing up to now has stopped 3PPs trying to establish new RPG ecosystems around new SRDs licensed under the OGL. But they haven't been doing so, presumably because they think there is no market for them.

Some people seem to think that over the past month or so the market for non-PF, non-D&D-adjacent RPGs has grown tremendously in size. Personally I'm not sure what the evidence for that is.

I have to point out there's no small number of people outside the D&D-sphere who were using the OGL as a tool of convenience who are utterly uninterested in fishing in that pool. I know at least three personally who will probably be hopping over to the ORC who have no interest in any D&D adjacent at all in their publishing. That has nothing to do with whether its a particularly vigorous market or not.

 

[AbdulAlhazred]

I asked a friend -- avid 4e fan -- if there are still people creating 4e content.

"Oh yes! I'm well-connected. There are dozens of people!"

lol, it isn't actually hard to get a 4e game going. There are plenty of people around who like 4e.

 

[S'mon]

Perhaps for clarity I need to add: some people seem to think the current furore has some connection, in legal terms, to section 9. But I've read just about every post i this thread, and I don't think I've seen any of the lawyer contributors try to make out such an argument. In my view, those who connect what is going on at the moment to section 9 are just wrong.

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

 

[Matt Thomason]

You do bring up an interesting point. It sounds like GG is basically using OGL to PREVENT anyone from using their content, which is a behavior that would certainly NOT be possible under a CC license! This sort of flaw would also exist in ORC if it provides a similar type of clause, effectively a dominant publisher can force you to either be 'incompatible' (at least in terms of terminology, which means a lot to gamers) or else pound sand.

From my own perpective, I don't really see this as a problem, because I've understood the OGL worked like that since shortly after it was first published. That's a part of the agreement, and not some loophole someone has discovered and is attempting to use years later. One of my own first thoughts were that I could claim my spell names are PI, allowing the reuse of the mechanics but not the names themselves, if I didn't want people making something compatible with my work.

The OGL does not promise everything made under it will be compatible with everything else, or even imply creators have any moral responsibility to ensure that. It simply lets you contribute some game mechanics (or, really, pretty much anything you want) to a central "pool" that any other OGL licencee can draw upon. I've seen plenty of products where the only OGC was the stuff they had reused, and honestly don't see any real problem with that because I've never read the license to imply that was a requirement. Much of the reason for this is because the d20 Trademark License did specifically require that you have a specific amount of Open Game Content, so anyone who was there at the beginning and read the both alongside one another could notice the omission of such things in one and the inclusion in the other.

I don't see this as a flaw. I see it as a reason why multiple types of license exist, to suit the needs of the person releasing material under them. If someone chooses to use the CC license, then yes,they have to grant those extra rights. The choice, however, needs to be the original creator's.

I am far more concerned with holding people to the license they have chosen to agree to (mainly WotC), than with an ideal of "everyone working together". I like the idea of the latter, but I'm going to be far more judgemental over people with the former.

 

[Ondath]

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

The leaked OGL 2.0 also has a lot of provisions that contradict the promises WotC made in their January 13 statement, so I'm not sure if this will be implemented anymore.

 

[S'mon]

Well, it doesn't help that IP law is such a bog that not only can you get people who avowedly are knowledgeable in the related subject not be in agreement, that even a somewhat experienced layman can have trouble figuring out who to believe. I know enough to know that I wouldn't even take a general purpose business lawyer's word on it, and that's probably as far as most of them can go.

I think it's fair to say that the outcome of cases on Copyright, especially non-literal copyright infringe, tends to be unpredictable. I think people who work and teach in the field of copyright would agree to that. I've given a few examples upthread from England, like the Ainsworth, Pally Screen, and Temple Island cases.

However, while Contract cases can go in unexpected directions, especially where the issues at stake are complex, I don't feel that Contract law has the inherent uncertainty you see in Copyright cases. A Contract case might go wonky 8 or 10% of the time - maybe the judge didn't understand the issues, maybe it was argued badly by the lawyers on one side, etc. With Copyright I see cases well argued on both sides, and a perfectly reasonable judgment made, and often it can go either way, no way to predict. I'd guess in the USA with juries involved that must be even more the case.

 

[Matt Thomason]

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

I'm also worried about the "type of work that could be licensed" part.
So if you had been working on VTT software, you wouldn't even have gotten the six-month grace period and would suddenly find yourself with a ton of unusable work, if you believed WotC had the right to pull your existing OGL 1.0a rights from under you.

 

[Matt Thomason]

The leaked OGL 2.0 also has a lot of provisions that contradict the promises WotC made in their January 13 statement, so I'm not sure if this will be implemented anymore.

Certainly, but the problem is that 1.1 was an indication of what they really want, and will likely be looking for ways to do in the future with less opposition, such as doing it a bit at a time to avoid such a huge backlash.

 

[pemerton]

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

Thanks for that.

As I read the v 1.1 leak, it relied upon a consensual variation together with an implausibly broad acceptance provision. Although it had broader language in its FAQ. I think the bit you've posted is definitely clearer in its allusion to section 9 - have the actual contractual terms been leaked? (I also wonder: did WotC rewrite along clearer section 9 lines given the apparently widespread community acceptance that section 9 does confer a unilateral power of contractual variation?)

I don't think it changes my earlier point - Paizo,, too, in the future can assert strained interpretations of its legal rights (I mean, as you know, the right of variation that WotC now asserts is directly contradictory to what they posted in their FAQ in the past). The issue that is driving the current furore is not legal right, but commercial reality (ie WotC is confident that few are prepared and able to litigate).

Paizo has said they'll defend vs any attempt by WoTC to claim the OGL 1.0 can't be used.

That makes sense to me, given (i) Paizo's size, and (ii) the centrality to Paizo's business model of the OGL v 1.0.

 

[AbdulAlhazred]

I don't think this is an accurate description of the legal state of affairs. WotC has no power to change the terms of the OGL v 1.0/1.0a. It has a power to promulgate variations, and each licensee has the power to choose which of the variants they will use when they reproduce, copy or modify OGC.

They could create an OGL with almost any terms whatsoever and then use content under that version, as spelled out in existing versions of the license. They can certainly release new content (and mixed new/old in such a way that it would be almost impossible to separate them) exclusively under a new OGL which lacks an "or any other version" clause. Yes, it is likely I can ignore that license and content for my own purposes, but there's still little reason for me to give my stuff away free to WotC to do virtually whatever they wish with it. lol.

In practical terms, what difference does it make?

There's been no actual example, from the first promulgation of the OGL up to now, of this ownership by WotC actually making a difference to anything. What hypothetical(s) are people envisaging?

Perhaps for clarity I need to add: some people seem to think the current furore has some connection, in legal terms, to section 9. But I've read just about every post i this thread, and I don't think I've seen any of the lawyer contributors try to make out such an argument. In my view, those who connect what is going on at the moment to section 9 are just wrong.

I want a regime under which I never have to worry, and apparently that can never be as long as it is rooted in things owned/controlled by WotC! YOU SAY I have nothing to worry about, but gosh that is comforting! lol. Not that I think you are crazy, but if I could operate under a license regime which I am entirely confident in the stewardship of, then I will do so in a heartbeat, all things being equal.

My reply to this is the same as to @AbdulAlhazred. Given that no issue (including the current one) has ever arisen in relation ship to WotC's ownership of the copyright in the OGL, or in relation to its authority under section 9 to promulgate variants, what practical difference does it make that under ORC a third party not-for-profit enjoys that right and that power?

This isn't true.

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now. The issue of who owns the copyright to ORC has no relevance to that. (I mean, maybe it will preclude Paizo calling its proposed new licence ORC v 2 - but that doesn't seem to me to be of any great significance.)

Sure, anyone using any license can decide that they were having a brain fart the day they attached that license to their stuff and try to claw back the rights they've given up! There are, however, differing quality levels of licenses and some which are actually backed by organizations and interests who can effectively weigh in when you are threatened. Again, this heavily favors a CC type licensing scheme, again all other things being equal. Section 9 IS however the mechanism by which WotC would try to argue its escape from the license, so it IS a weakness. ORC could improve on that, but IMHO its a pointless effort, CC is better. CC certainly seems better in the case of anyone who doesn't have a lot of stake in Product Identity, as the ORC/OGL only advantage is the "don't use my PI" clause. I'd still have good old copyright, etc. though, which has served every book publisher in existence quite well for a couple centuries.

 

[S'mon]

The leaked OGL 2.0 also has a lot of provisions that contradict the promises WotC made in their January 13 statement, so I'm not sure if this will be implemented anymore.

Agreed, but they seem consistent on their plan to purport to 'de-authorise' the OGL 1.0 for all future creation.

 

[robconley]

My reply to this is the same as to @AbdulAlhazred. Given that no issue (including the current one) has ever arisen in relation ship to WotC's ownership of the copyright in the OGL, or in relation to its authority under section 9 to promulgate variants, what practical difference does it make that under ORC a third party not-for-profit enjoys that right and that power?

Please read the documents and faq at the links I posted before asking this question again. The answers to your questions are there. As a legal academic, I recommend emailing the different non-profits and ask them any detailed questions you have.

This isn't true.

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now. The issue of who owns the copyright to ORC has no relevance to that. (I mean, maybe it will preclude Paizo calling its proposed new licence ORC v 2 - but that doesn't seem to me to be of any great significance.)

You are mistaken and obviously did not read the faqs at the links I posted earlier or contacted the organizations in question.

If it is set up like the GPL or Creative Commons, then the terms of the license will stop Paizo from revising them for any content released under ORC. Whatever the flaw of the OGL are they are not shared by the GPL, CC, and other open licenses.

 

[pemerton]

I'll go ahead and say, "I disagree again." The issue is the legality and safe harbor quality of using WotC Open Game Content. Any court will (most likely) resolve both issues, and when that happens, there's no need of "trust" in its use as that would qualify as "verified."

I don't have view on whether or not litigation is sensible. Even for Paizo, it makes sense for them to declare a willingness to litigate, but in any actual circumstances they might be better of settling.

But I agree with you completely about what is at stake. That's what I've been trying to convey in my posts about "safe harbours" etc.

EDIT: I also agree completely with your post #1809.

 

[Matt Thomason]

I think it's fair to say that the outcome of cases on Copyright, especially non-literal copyright infringe, tends to be unpredictable. I think people who work and teach in the field of copyright would agree to that. I've given a few examples upthread from England, like the Ainsworth, Pally Screen, and Temple Island cases.

However, while Contract cases can go in unexpected directions, especially where the issues at stake are complex, I don't feel that Contract law has the inherent uncertainty you see in Copyright cases. A Contract case might go wonky 8 or 10% of the time - maybe the judge didn't understand the issues, maybe it was argued badly by the lawyers on one side, etc. With Copyright I see cases well argued on both sides, and a perfectly reasonable judgment made, and often it can go either way, no way to predict. I'd guess in the USA with juries involved that must be even more the case.

Yeah, as a layman I'd say copyright issues can come down to whether your sculpted shoulderpads are sufficiently similar to the other guy's, which is not really something you can sit down and theorize before the case even begins, while contract cases are more language-oriented, the words are right there and the only real problem (ha) is making sure you've done all your research on how the law will interpret them.

The former does not have any real theoretical rules to figure it out, while the latter does (even if it's a horribly complicated way that most of us would not be capable of) because it is an actual logic exercise rather than an "artistic expression" one.

 

[mamba]

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now.

not even calling it perpetual and irrevocable? Or are you talking about new material not licensed under it?

 

[pemerton]

the terms of the license will stop Paizo from revising them for any content released under ORC.

The terms of a licence can't stop anyone doing anything. They are inert legal norms.

I mean, the terms of the OGL prohibit WotC doing what it is currently purporting to do, but it is going right on ahead!

What makes legal prohibitions effective, when actors that they bind choose to ignore them, is enforcement. If no one is willing to sue then the terms are meaningless.

 

[Matt Thomason]

Sorry, but I'm not interested. One week they're saying this, the next they're saying that.

The trust is gone, and what you're saying isn't bringing that back. That's what's important.

The exact stance WotC - or the courts - ultimately decides to take is a footnote by now.

I'm almost in entire agreement to this. The first two sentences for sure, but I would be interested in seeing whether continued usage of OGL 1.0(a) is tested in court and possibly returning to it at a later date if precident is established the right way.

 

[S'mon]

Thanks for that.

As I read the v 1.1 leak, it relied upon a consensual variation together with an implausibly broad acceptance provision. Although it had broader language in its FAQ. I think the bit you've posted is definitely clearer in its allusion to section 9 - have the actual contractual terms been leaked? (I also wonder: did WotC rewrite along clearer section 9 lines given the apparently widespread community acceptance that section 9 does confer a unilateral power of contractual variation?)

I think your latter question is a bit unfair on 'the community'. No, I think WoTC had this plan in mind all along.

On the former question, I believe there is no available 'OGL 2.0' document. WOTC's lawyers are probably working & reworking the draft even as I type! I believe they intend to release it tomorrow Monday 16th January, but that very well could be pushed back.

 

[pemerton]

not even calling it perpetual and irrevocable? Or are you talking about new material not licensed under it?

I'm talking about Paizo sending everyone a memo, just like WotC has done, asserting that it enjoys legal rights to do <whatever it wants to do> and insisting that everyone else accept that.

It's working for WotC even as we exchanges message board posts! The fact that the powers that WotC is purporting to exercise are not ones that it enjoys under the OGL aren't stopping it from purporting to exercise them.