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

[FrogReaver]

I dunno, I remember when that movie Double Jeopardy came out; even at the time I was pretty sure that its interpretation of that particular clause was completely bogus.

Wait, Double Jeopardy was a lie?

My childhood is being destroyed!

 

[Levistus's_Leviathan]

it's that physics cat...

Schrodinger's Cat.

 

[MNblockhead]

may I suggest pushing non d20 games. find a game (fate, rifts, savage world, vampire ect ect) and try to get everyone you know that plays D&D to try them... and make it a big visual loud change. Go on FB and tell everyone you are leaving D&D and D&D like games for ________.

Will you insist that those non-d20 games have as permissive a licenses as an OGL? Boycotting WotC for attempting to revoke their open license and instead patronizing a company that doesn't offer an open license, seems a bit hypocritical, or at least counter-productive.

E.g., Gamesworkshop has a bit of a nasty reputation from what I've read, so going to WFRPG seems like a poor choice if I'm leaving WotC because it is no longer supporting open content.

So which publishers offer open gaming licenses that are not wrapped up in the WotC OGL mess? Seems like it would be more effective to say "if you support open gaming, then support these companies" rather than "F!@% WotC, I'm never buying from them again. I'll play other games."

 

[mamba]

Will you insist that those non-d20 games have as permissive a licenses as an OGL? Boycotting WotC for attempting to revoke their open license and instead patronizing a company that doesn't offer an open license, seems a bit hypocritical, or at least counter-productive.

not sure it is either… if the other publisher has a more lenient license than the OGL 1.1 is shaping up to be it is still a step in the right direction - and at this rate essentially any freely available license is

If the goal is for WotC to relent, just dropping them is good enough, if it succeeds and you intent to come back then.

So which publishers offer open gaming licenses that are not wrapped up in the WotC OGL mess?

good question, esp if WotC does stick to 1.1

 

[MNblockhead]

not sure it is either… if the other publisher has a more lenient license than the OGL 1.1 is shaping up to be it is still a step in the right direction - and at this rate essentially any freely available license is

If the goal is for WotC to relent, just dropping them is good enough, if it succeeds and you intent to come back then.


good question, esp if WotC does stick to 1.1

I started a new thread on this topic (which other publishers offer open licenses not tangled up in WotC's OGL): Stop telling me to boycott WotC. If you support open gaming, tell who to support. (+ thread)

 

[pemerton]

I don't believe that's the tradition on the criminal side of the common law; still, that's because the U.K. does not have a constitution, it just pretends it does.

As a Canadian lawyer in his late-50s, I remember a time when we tried to pass out the "unwritten constitution" Kool-Aid, too.

We don't do that anymore here. Not even a little bit.

I know the UK has a constitution. It doesn't pretend that it doesn't. But it is unwritten in part, and in part (as I'm sure you know) distributed among various statutes that are amenable to repeal or amendment in the ordinary fashion. (Subject to recent judicial doubt about the operation of implied repeal in relation to so-called constitutional statutes.)

There can be retrospective criminal laws in the UK, just as there can be in Australia - for the latter jurisdiction, see eg the Polyukhovich case. In Australia a federal bill of attainder would be an invalid attempt by the legislature to exercise the judicial power of the Commonwealth; a state bill of attainder would be suspect but any argument for its constitutional invalidity would be quite complex (the starting point would be Kable's case). In the UK there would be interpretive questions that arise both under the principle of legality and the Human Rights Act, but a sufficiently clear bill of attainder would have legal effect.

 

[bmcdaniel]

...

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

The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.

Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.

This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).

It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which is expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." I dont see any argument there is not an offer and acceptance. Sec 4 of the OGL recites the consideration for the agreement: "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." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that WOTC is the party specifying the consideration. More generalky, usage of contract terms like offer, acceptance and consideration by WOTC demonstrates an intent to form an agreement with the licensee. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.

So long as an agreement is not illegal, a party cannot unilaterally terminate an agreement except to the extent that the agreement permits them to terminate the agreement. The sole statement relating to termination in the OGL is Sec 13 which states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

The commentary to-date revolves around Sec 9 which states "Wizards or its designated Agents may publish updated versions of this License. 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." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation. First, a principle of contract interpretation is "expresio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement. Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.

Finally, aside from the contractual analysis there are equitable doctrines that make additional difficulties if WOTC advanced this claim. For example, there is a doctrine called "detrimental reliance" that says, even in the absence of a contract, if one person induces another person to change their position in reliance on a statement by the first person, the second person can reasonably rely on the statement. The WOTC Q&A by itself could support a claim for detrimental reliance. Other equitable doctrines such as "laches" and "unclean hands" would prevent WOTC from enforcing the OGL is they waited too long to enforce or acted inequitably. Again, the public statements by WOTC and its representatives would support a claim under equitable doctrines.

There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option is what is happening, but it is possible that option (x) is occuring.

 

[S'mon]

The issue of how a legislator can bind itself - in Australia, the UK and some other Commonwealth jurisdictions this is the issue of "manner and form" - doesn't seem to me to bear much on contract law. Because it's pretty clear how a private party can bind themself at common law: make an agreement with the intention to enter legal relations, with a meeting of minds over that bargain, and consideration in both directions. And to me the OGL seems to exhibit that character.

I'm not sure I agree with @DavyGreenwind that the consideration flowing from licensees under the OGL is not much - they agree to allow use of their copyrighted OGC by downstream users, and confer on those downstream users the authority to create further sub-licenses. (But I don't how important adequacy of consideration is in US contract law, either in general or in the licensing context.)

Similarly to @S'mon (who I've discussed this with before, including recently in the "not an open license" thread), I've got doubts that WotC can unpick all those contract unilaterally.

This depends on the constitutional rules in a given jurisdiction. In the UK, for instance, there are no bars on retrospective legislation. In Australian that's also mostly the case, and retrospective legislation is relatively unremarkable.

I agree that WotC can revoke its unilateral offer at any time, and I've posted the same on these boards many times over the years. I'm not so sure, though, that it can unilaterally withdraw the authority conferred on existing licensees to sub-license, especially as section 13 of the OGL v 1.0/1.0a provides that all sub-licences shall survive termination.

Although, having written the above, I can see two arguments to the contrary: (i) the reference to termination is implicitly confined, in virtue of its context, to termination for breach; (ii) sub-licences survive, and hence parties who (eg) contracted directly with Paizo but only indirectly with WotC retain rights to distribute their existing products, but no new sub-licences can be granted.

The leading case in Australia on promissory estoppel as analogous to waiver is Commonwealth v Verwayen. It concerned representations made in the course of pre-litigation negotiations, together with policy statements by the responsible minister. (The case concerned personal injury litigation resulting from a collision between two Australian naval vessels.) Chief Justice Mason referred to "a deliberate and considered decision ha[ving] been mad" by the Commonwealth as a defendant, and also noted "express representations to some claimants".

Do you think the FAQ is enough?

I definitely think that publishers have acted in reliance on representations made by WoTC over the past 20 years, including the FAQ. So certainly under English law a company like EN World should be protected under Promissory Estoppel for its past and current publications, though not future ones (per High Trees et al). But PE is a last ditch defence here. I think the release of the 3e, 3.5e, and 5e SRDs under the 1.0 OGL is by non-revocable licences and sub-licences in any common law jurisdiction and it shouldn't come to PE.

 

[Greg K]

Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.

This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).

It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." Sec 4 of the OGL recites the consideration for the agreement: "By Using the Open Game Content You indicate Your acceptance of the terms of this License." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that they the person who have said that there is consideration. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.

Not being a lawyer, would WOTC also benefitting from third parties by them offering additional support and help keeping D&D in the public eye and OGL products keeping people in the D&D orbit (I forget what Dancey called it) also be consideration or otherwise a factor against WOTC?

Aargh, I had one other question, but I brain fogged and can't recall it atthe moment.

Edit: Also, if there is ambiguity in a contract (e.g. if revocation/deauthorization is ambiguous), don't courts typically rule against the company/person that wrote it? (I felt like a goldfish with this question. Three times I recalled the question and forgot a second later (Ok, worse memory than a goldfish)).

 

[S'mon]

Yeah, after watching that, I posted in another thread asking the lawyers what they thought about the arguments he stated were stacked against WOTC revoking 1.0a at this time, but also a federal statute (?) that would allow for them to end the license in another 12 years (i.e. 35 years after the 1.0 a was released).

35 years sounds like reversion of rights where you transfer copyright. We no longer have this in the UK (the interaction of US reversion rights with English contract law was in issue in the Duran Duran case I discussed with the judge, Sir Richard Arnold). As far as I can tell it is not relevant here (it would wreck open software licencing if so). The lawyer did say he was not an IP lawyer. I think you can ignore that bit.

(I thought reversion rights in US copyright were confined to music? Like I said, we don't have them any more though I wish we did! They come from the 1709/10 Statute of Anne, the One True Copyright Act. )