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

[Enrahim2]

"Your only option in making OGL content after 13 January will be OGL v1.1-Commercial/Noncommercial"

Not that I can see. The actual quote that tend to be read that way. "But if you
want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial."

Also this is in the faq, so not legal language. And thinking about it for just a bit, especially in connection with the previous sentence where they reference custom deal it is quite apparent that the first thing that come to mind when reading it is clearly nonsense. The obvious claim this could be read as would be that the only way they intend to enable anyone using any srd content would have to do so by agreeing to this is just laughably implausible. Would anyone seriously believe wizards would never write custom contracts allowing other big businesses to use content found in the srd at more favorable terms? You really think Paramont would happily sign off those rights?

This lead me to think that they are using the language trick of introducing a new word: "SRD-based". OGL 1.1 is "srd based" as it explicitely mention the srd as having a special position in its terms. Note that OGL 1.0a is not mentioning SRD. Hence their claim seem like a valid description of the situation. The only license that grants rights to commercial use and is SRD-based is indeed 1.1 commercial (at the time of assuned relevance for this faq).

It can be said to be deliberately misleading to make you think there is no other way to use OGL. But isnt it rather very clear upon closer inspection that that is not what they are actualy saying?

 

[Knuffeldraak]

WotC could demand you take something down, but they can't unilaterally say "This is mine now".

Yes and no. The OGL protects you from takedowns like that, as they give you permission to share and use their stuff (unless you break those the terms).

They're also not saying anywhere "this is mine now". They're saying; "it's yours, but you've given us permission to use and share it."

Whether the FPC is constitutionally a legal agreement is something I fear a court will need to decide, but what is fact is that it rendered the artist from 2 years ago unable to exercise any legal course of action, and has protected Wotc from adding fan-made stuff into UA and 4-th edition multiple times in the past.

 

[Enrahim2]

OF COURSE it can be more than these relatively banal and straight-forward explanations, no argument. Sill, it is more likely to be something like the above which explains the delay than not.

Completely agree. But a bored guy can be allowed the hope of some fireworks sometimes, can't he?

 

[Ruin Explorer]

They're also not saying anywhere "this is mine now". They're saying; "it's yours, but you've given us permission to use and share it."

Buddy, that isn't how copyright works. It never has been. You can say "Oh well the FPC lets them!", but it's uninformed garbage, that you seem to have been convinced into believing by some vague account of events a while back, which was probably distorted in the first place.

Whether the FPC is constitutionally a legal agreement is something I fear a court will need to decide

No. It's just not how copyright works.

but what is fact is that it rendered the artist from 2 years ago unable to exercise any legal course of action

That's absolutely not an established fact. That's "a belief @Knuffeldraak has". Source it and link it, and let's see if it's a fact. Looking it up I can find nothing at all.

and has protected Wotc from adding fan-made stuff into UA and 4-th edition multiple times in the past

Examples? I've never seen this fascinating and very extreme claim before.

 

[Enrahim2]

That's... not how copyright works. The Fan Content Policy isn't a contract. WotC could demand you take something down, but they can't unilaterally say "This is mine now".

(IANAL) Are you certain it isnt a contract in disguise? They are quite sneaky about it, check out the second term:
"
2. Tell the Community it’s unofficial. Make it clear that your Fan Content is not endorsed or sponsored by Wizards—i.e., unofficial. Please include a note with your Fan Content explaining that:
“[Title of your Fan Content] is unofficial Fan Content permitted under the Fan Content Policy. Not approved/endorsed by Wizards. Portions of the materials used are property of Wizards of the Coast. ©Wizards of the Coast LLC.”
"

 

[Knuffeldraak]

Buddy, that isn't how copyright works. It never has been. You can say "Oh well the FPC lets them!", but it's uninformed garbage, that you seem to have been convinced into believing by some vague account of events a while back, which was probably distorted in the first place.

No. It's just not how copyright works.

That's absolutely not an established fact. That's "a belief @Knuffeldraak has". Source it and link it, and let's see if it's a fact. Looking it up I can find nothing at all.

Examples? I've never seen this fascinating and very extreme claim before.

As for the artist, Google; "Strixhaven Crux of Fate stolen art". You'll find that no legal action was it could be taken, only a terminations over immorality.

As for UA and 4th edition, this literally was mentioned in the posts right above you? But for an example; Firearms weapons + feat Support came from UA came from Matt Mercer's Fighter (Gunslinger) homebrew document.

 

[Ruin Explorer]

(IANAL) Are you certain it isnt a contract in disguise? They are quite sneaky about it, check out the second term:
"
2. Tell the Community it’s unofficial. Make it clear that your Fan Content is not endorsed or sponsored by Wizards—i.e., unofficial. Please include a note with your Fan Content explaining that:
“[Title of your Fan Content] is unofficial Fan Content permitted under the Fan Content Policy. Not approved/endorsed by Wizards. Portions of the materials used are property of Wizards of the Coast. ©Wizards of the Coast LLC.”
"

Interesting.

I think that'd be very unlikely to work out in court for them, though.

As for UA and 4th edition, this literally was mentioned in the posts right above you?

I'm not seeing anything. Maybe my view is different or it's someone I have blocked?

But for an example; Firearms weapons + feat Support came from UA came from Matt Mercer's Fighter (Gunslinger) homebrew document.

I'd love to see any kind of link supporting that. I'm not saying it's not true, but where's the evidence? Particularly I'd like to see the homebrew document with the Fan Content Policy text above on it. Given CR's close relationship with WotC it may well have been authorized, if it's even true that they're the same.

EDIT - Also wait how would this even physically be possible? There's no "Firearms UA". The firearms rules are in the DMG! How could Matt Mercer's Gunslinger for 5E exist BEFORE 5E D&D's DMG?

As for the artist, Google; "Strixhaven Crux of Fate stolen art". You'll find that no legal action was it could be taken, only a terminations over immorality.

No, I'm not finding that at all.

I can't see a single thing say that "no legal action could be taken", in fact the person was stolen from says that they "didn't want a confrontation".

So that doesn't support your claim. I just read three different articles on it. If there's anything saying "action could not be taken", you should link to that. Because AFAICT it doesn't exist. It sounds much more likely you're repeating a speculative fan opinion as legal fact.

 

[Fendulum]

I'm not sure that's right, at least not always, but I'm not a property lawyer. AFAIK if my landlord wrongly withdraws my licence to inhabit the house I'm renting from her, the court would say I'm entitled to remain in the property, not that I'm now a trespasser but can claim damages. I think it depends on the circumstances. A court won't order Specific Performance ("You must make this room available on the specified date, as agreed") but nor will they allow wrongful termination of an ongoing rental agreement, AFAICS, where the licensee is in situ.

Anyway as has been said this discussion of property licencing is really off topic, land is not IP.

That's right, but that's because a tenancy isn't a license. A rental agreement transfers a property interest. (Indeed, a landlord can be liable for trespass against a tenant under some circumstances--a tenant's remedies are not limited to breach of contract.)

This is what's confusing about this topic, and at this high level I don't think it's actually that different for IP versus land: there is a transfer of property right other than a simple sale, pursuant to a contract; you have both contract law and property law issues floating around; and the question is how to figure out the contours of each piece, exactly what the property transfer was and exactly what the contractual obligations are.

If you want an IP example of this, see Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008), which a number of people have cited. The court in that case considered whether the plaintiff was entitled to sue for copyright infringement for the defendant's violation of a license agreement, or just for breach of contract. The court analyzed the question as: are the conditions conditions on the license or are they just separate contractual promises. This isn't super helpful for this case but it shows the principle, which is that the scope of a license and the particular contractual promises made are distinct issues.

 

[Guest 7034872]

It's easy to see this through legal lenses, but this isn't really about a legal problem -- it's about a commercial business plan. And how contracting partners reacted may have surprised them and forced a re-consideration about this, that, and the other thing. It's commercial considerations which drives the train here, the legal stuff just has an important car (so much so that it may be one of the engines, sure), but commercial concerns always take precedence.

^^^ That's exactly how it has seemed to me from Day One. It looks a whole lot more like a P.R. problem than a legal one.

 

[tomBitonti]

Big update from Kit Walsh:

UPDATE January 11, 2023: As the community has scrutinized Wizards of the Coast's past statements, it's become very clear that Wizards always thought of this as a contract with obligations for both sides (for instance their 2001 OGL FAQ v 1.0). Unlike a bare license without consideration, an offer to contract like this cannot be revoked unilaterally once it has been accepted, under the law of Washington (where they are located) and other states.

[continued]

Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators

The company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of the game.

www.eff.org

‘Does this answer the question of whether the license offer can be withdrawn for future products? It’s one thing to revoke the license already granted to an existing product. It seems a different thing to cease to offer the license for new products. This distinction seems to be overlooked in a large proportion of current discussions.

Then, do sub-licenses convey access to the SRD, or just to new open co tent in a licensed product? I’m struggling with the question of whether new licenses to the SRD would be possible.

TomB