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

[Enrahim2]

Deauthorize isn't vague. It's an explicit reference to section 9 in OGL 1.0a. Deauthorizing 1.0a has the same effect as revoking 1.0a without needing to say revoking 1.0a.

Why would they want to just not say "revoking 1.0a", if it is equivalent, using less unusual wording?

 

[S'mon]

(IANAL) Well, here the tricky legalese legwork come in working come in. Section 1.0a section 9 doesn't specify that you need to accept the lisence the OGC was originally contributed under in order to publish it under 1.0a provided 1.0a is "authorized". Hence even if the 1.1 agreement spelled out that the lisencee agreed to not use OGL material in any 1.0a publications, an entity not bound by 1.1 would still be free to use any OGC that 1.1 compliant entity published under 1.1, citing the grant of 1.0a.

However puting the statement the way they do in 1.1 creates some important legal ambiguities. For one thing it appear the action of stating something is "no longer an authorized lisence" is not having any well defined meaning in contract law. There is hence room for interpretation.

• One interpretation is that it is meaningless nonsense, and should just be ignored.
• Another is that it somehow is an very weird way of writing the much less ambigous "Which is hereby revoked", which seem like most consider an illegal claim and hence void.
• The third interpretation I propose is that it adresses the "authorized" term in the update section of the license it claim to update. Hence asserting the notion that this "authorized" term that regulates which lisences can use material from which lisences can be specified in connection to the act of doing the update.

This third interpretation I still haven't seen any strong arguments for being fully invalid. Hence from an interpretation perspective it seem like this should at least be given some more consideration before being discarded in favor of one of the two likely void interpretations.

With this way of formulating it, it bypasses the issue that a 1.0a licensee has not accepted 1.1, as it rather adresses the state of 1.1 relative to 1.0a section 9. For someone to claim use of the 1.1 material they must justify that they consider 1.1 a "version of this lisence". However the sentence justifying such an assertion in 1.1, also include the claim that 1.0a is not aithorized. So either the 1.0a lisensee cannot claim 1.1 to be an ogl lisence, under section 9, or he has to claim 1.0a is not authorised as well, hence admitting the section 9 do not grant them the right to publish the ogl 1.1 material under 1.0a.

TLR 1 the suggested formulation could have been claimed not accepted by someone using 1.1 material in 1.0a. This formulation is cleverly placed so the 1.0a cannot conduct such activity while not claiming acceptance of it.

The problem: It was too clever, so noone not informed about the intended "plain language" interpretation might be prone to jump to the wrong interpretation, even if that was (obviously) legally invalid, unenforcable and cartonishly cruel if intended.

The big mystery is why wizards didn't write this out as a comment? Maybe they didn't want to draw attention to how this creates a one way vacuum from all ogl material into an exlusive VTT platform? Maybe they intended to scare/trick people under NDA not immediately seeing the right interpretation into signing binding contracts, before releasing the document publicly with a comment explaining the proper understanding to the world? Maybe they were so blinded by the brilliance of their clever legal footwork that they didn't realise it could be misinterpreted the way it did? This I guess we will never know for sure, but my guess is that they will claim the last in their next update..

Unless they have taken the suggestions of people describing how they can exploit this situation to crush all competition to heart, and figured it actually might be a more profitable path forward than their original plan.

It may be that WoTC did not wish to assert that they had repudiated their OGL 1.0 license obligations because they did not wish to open themselves up to breach of contract claims by everyone who has contracted with them under OGL 1.0. "No longer authorized" keeps it nice and ambiguous.

 

[Matt Thomason]

Why would they want to just not say "revoking 1.0a", if it is equivalent, using less unusual wording?

My guess here is that their lawyers have explained that they do not actually have a practical revocation mechanism for what is a viral license distributed far beyond reasonable ability to track properly, they can't simply announce it and hope people see the announcement, for example.

The license is also subject to regional interpretations - for example, in the EU it's a contract between the relevant parties, which may not be true in other territories where it simply defines permissions to do something. Therefore, they're likely having to deal with multiple legal definitions should they use the word "revoke" - one side cannot usually unilaterally revoke a contract without a defined mechanism to do so - that could potentially leave them wide open to breach of contract claims if they make comments that appear to revoke it even if you don't actually agree to the 1.1 license.

The word "authorized", however, is more solidly defined as a term within the 1.0 license, and is a lot easier to play with. If you agree to a 1.1 license you have agreed that "1.0 is no longer authorized", and that makes a material change to your reading of the 1.0 license. Meanwhile, they can likely also say what they like about the word "authorized" in comments outside of the license, including making claims it's happened even if you didn't agree to it (even if they can't do that), without the same fear of legal repercussions as they would with "revoke".

That's my layman's interpretation, anyway.

 

[Matt Thomason]

It may be that WoTC did not wish to assert that they had repudiated their OGL 1.0 license obligations because they did not wish to open themselves up to breach of contract claims by everyone who has contracted with them under OGL 1.0. "No longer authorized" keeps it nice and ambiguous.

Thanks for putting that far more elequently and succinctly than my own rambling version

 

[robconley]

Their opinion amounts to: The OGL must state it's irrevocable to be irrevocable. While a statement of irrevocability inside the OGL would have put alot of us at ease, the legal cases that have been cited here and actually looked at by the professionals posting, so far none seem to support the notion that the lack of an explicit irrevocability clause neceassirly means a license is irrevocable.

The Open Source world long been divided into camps about how far to go. EFF is firmly in "all thing should be open" camp. By their reasoning that mean Linus Torvalds could withdraw authorization for his license grants for Linux because it uses GPL v2 which doesn't have irrevocable in it as well. Irrevocable only became a consideration in the wave of revisions (GPL v3, CC, etc) that came in the late 2000s, and 2010s. Well beyond when the OGL was created.

In an ideal world, there would be an OGL 1.0b update that updated the language slightly to make it irrevocable. But to be critical of a license that predated that understanding is disingenuous and to me feels like throwing the OGL community under the bus.

In fact many are finding that the decisions around revocability are highly case/fact specific. Essentially, explicit duration and explicit termination clauses are strong factors supporting a license not being revocable outside those clauses.

Which I would really like those who are lawyers to start citing key cases so we can read the nuances for ourselves. The details matter. Especially if it something that happened AFTER the OGL was created.

 

[pemerton]

If that is the case, why use a vague term as 'de-authorize'?

Deauthorize isn't vague. It's an explicit reference to section 9 in OGL 1.0a. Deauthorizing 1.0a has the same effect as revoking 1.0a without needing to say revoking 1.0a.

Where does the term "de-authorize" occur in the leaked document? I don't think I've seen it.

All I've seen is a reference, in the Termination section of both licences, to the OGL v 1.0/1.0a, no longer being an authorized licence agreement.

To me, that appears to mean that parties to v 1.1 accept that v 1.0 and 1.0a are no longer authorized, and hence accept that they have no right to reproduce, under v 1.0/1.0a, any OGC that might have been licensed to them. To me, it also seems that a party to v 1.1 who distributed OGC licensed under v 1.0/1.0a would be in breach of their obligations to licensors under 1.0a, because they would not be passing on the rights and powers (including to pick and choose among variant licenses) that v 1.0/1.0a obliges them to pass on.

If wizards had claimed to "revoke" 1.0a they would have used that word. What they have claimed is that it is "no longer authorized". The attempt at equating these two concepts are so legaly shaky, that I struggle to see this quote as anything but a strawman.

I don't really see that there is much difference, in the abstract, between revoking permission to do something where that permission was granted by way of a written instrument and declaring that the instrument which conferred that permission is no longer authorised.

If the explanations have no legal weight, then WoTC are apparently NOT claiming to terminate OGL 1.0 for those who don't accept OGL 1.1?(!)

I don't quite know what they're claiming, but I can't really see anywhere that they actually declare v 1.0/1.0a to be terminated or revoked in respect of any past or present SRD.

So are we now swinging back to the view that they are not setting out to sow chaos, and there has been a whole lot of misunderstanding? And that this is just another episode of GSL?

That seems to be covered under the definitions of Licensed and Unlicensed Content. They're trying to kill off the concept of Open Game Content and instead say that the 5.1 SRD is Licensed Content, and anything else that has been released as official D&D anything by WotC or a predecessor or successor (so that includes TSR) is now Unlicensed Content. The old SRDs would fall under the Unlicensed umbrella if this theory were to pan out.

Well, for some parties to v 1.1, they may have a separate agreement specifically authorising the use of old SRDs, namely, the OGL v 1.0/1.0a as it applied to those old SRDs. ( @Enrahim2 has made this point.) However, a party to v 1.1 has also agreed that v 1.0a is no longer authorised, and so they can't use the OGC licensed to them as they can't comply with the terms of the licence. To me, it seems that the effect of becoming a part to v 1.1 is that a licensee renounces their existing rights against WotC under the OGL v 1.0/1.0a.

I guess it could be argued that the statement about 1.0/1.0a being no longer authorised is confined to the context of the SRD 5.1, but that does not seem the most natural reading to me. And I don't think WotC are interpreting it that way, given their statement about forfeiting the right to create and/or publish unless you become a party to v 1.1.

As far as I can see the commercial version do not as far as I can see require a copy of the license to be included (that provision is in the non commercial section V C) so given 1.0a section 9, wizards should be able to publish any OGC under the terms of 1.1 commercial, without any copy of the OGL or other atribution

This doesn't quite make sense to me. WotC already enjoy the right to publish OGC, under the licence pursuant to which that OGC was published (ie OGL v 1.0 or v 1.0a). But OGL v 1.1 commercial is a licence between other parties (as licensees) and WotC (as licensors). WotC don't enter into the licence with themselves, so there is no such thing that I can see as WotC publishing a work under the OGL v 1.1.

 

[glass]

I'm pretty sure it did. The very first Pathfinder release, Burnt Offerings, came out in late August, 2007. The original release of the GSL, according to my local copy, came out in mid-June, 2008.

That was the origin of the Pathfinder brand, but the Pathfinder RPG appeared a little later (the first few Pathfinder adventure paths were for 3.5). OTOH, if Wikipedia is to be believed the RPG was announced in March 2008 so still before the GSL finally arrived (although not before WotC started talking about it).

ii. Not Usable D&D Content (“Unlicensed Content”) – This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and is not present in the SRD v. 5.1. U

Is it me, or is this bit also extra-horrible (especially when combined with the "we can take your stuff an reprint it)? Not only can they print your stuff without compensation, but when they do it will cease to be "licensed content"!

....by the way, the leaked document only mentions OGL 1.0(a) as being unauthorized. No mention of OGL 1.0 (not "a")

A possible loophole for OSR creators? [emoji848]

If we accept that WotC have the ability to de-authorise 1.0A, then they also have the power to de-authorise 1.0. So even if it worked as a loophole, it would work for at most 30 days after WotC became aware of it.

 

[pemerton]

The license is also subject to regional interpretations - for example, in the EU it's a contract between the relevant parties, which may not be true in other territories where it simply defines permissions to do something.

In which jurisdiction do you think it's not a contract?

It expressly provides for offer and acceptance, and for consideration to flow in both directions: the grant of permissions to use copyrighted text and of the power to sub-license, and the promise to refrain from using product identity and to offer a licence on the same terms to all comers for certain parts of one's own work.

 

[Alzrius]

That was the origin of the Pathfinder brand, but the Pathfinder RPG appeared a little later (the first few Pathfinder adventure paths were for 3.5). OTOH, if Wikipedia is to be believed the RPG was announced in March 2008 so still before the GSL finally arrived (although not before WotC started talking about it).

You didn't read far enough down the thread.

 

[Matt Thomason]

In which jurisdiction do you think it's not a contract?

It expressly provides for offer and acceptance, and for consideration to flow in both directions: the grant of permissions to use copyrighted text and of the power to sub-license, and the promise to refrain from using product identity and to offer a licence on the same terms to all comers for certain parts of one's own work.

Apologies, I didn't mean to imply any specific instance where it wasn't a contract, only that I know it is within the EU, and might not be elsewhere. Also that contract law itself may differ between territories.