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

[Ibrandul]

‘Does this answer the question of whether the license offer can be withdrawn for future products?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

Their initial take was (in part) basically “WotC can revoke, period”—but it didn’t seem to be a fully informed take, instead falling into the now all-too-familiar “doesn’t say ‘irrevocable,’ case closed” camp. As I read it, this update means they still think WotC can stop OGL 1.0a from applying from now on, but they can’t cancel it for already-published products.

 

[GMforPowergamers]

Their initial take was (in part) basically “WotC can revoke, period”—but it didn’t seem to be a fully informed take, instead falling into the now all-too-familiar “doesn’t say ‘irrevocable,’ case closed” camp. As I read it, this update means they still think WotC can stop OGL 1.0a from applying from now on, but they can’t cancel it for already-published products.

So many lawyers (some IP some not) have weighed in with diffrent versions I can't imagine anyone could know for sure how a judge would rule... I have been told some judges are wild cards even in open and shut ones...

 

[bmcdaniel]

Catching up.

I really appreciate your efforts to simplify matters for people. but I have to take issue with what you have said here. This ... isn't accurate, and is arguably misleading.

A person can say that contract law, in general, is about understanding and enabling the parties' intent. But that's not everything, is it? It's also (for lack of a better phrase) a system of rules that have built up over time. For example, there are rules (especially in the United States) about revoking licenses. There are rules about revoking offers (so that offers to contract are not open forever).

When people are talking about revokable and irrevocable, while I do think they are confusing various concepts (the revocability of a license, of an offer, or confusing it with termination/breach), there is a distinction between the legal concepts and "whatever parties are throwing into contracts."

I am sorry that you feel it was not helpful.

I will note that the text you quoted was not a response to @kjdavies asking about the meaning of revocation in contract law (i.e. as used in treatises, judges and lawyers), but it was a response to @kjdavies asking about the meaning of revocation in a contract (i.e. as used by parties to a contract). Those are very different questions with different answers.

I could have written a post about what revocation means in general English usage, or what revocation means to the community of licensing professionals. That post would have a very different tone, stressing the determinacy of contractual interpretation over its indeterminacy.

My own feeling if that the post placing the parties' intent at the heart of contractual interpretation, and the resulting indeterminacy was more helpful in responding to @kjdavies question. I am trying to be helpful to @kjdavies based on nothing more than a couple of lines of text in a forum post, but I freely admit that I could be wrong and a different post with a different tone and emphasis may have been more helpful to @kjdavies. (And this is a good point to state that the fact I don't really understand @kjdavies particular situation, and thus it is difficult to know how to be helpful, is one reason that this is not legal advice to @kjdavies.)

I would suggest that if believe my post was not helpful, and you are trying to be helpful to be @kjdavies, it may be better for you to respond directly to @kjdavies with your own views about the best way to respond to his questions.

(It may also be helpful for @kjdavies to evaluate your view if you posted your identity and credentials, as other legal professionals have, but I believe you have not.)

Cheers,


-------------
In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

 

[glass]

WotC IS a party to the contract, one of the main considerations that they recieve from the contract is that they are ALSO free to use anyone elses OGC in future book (just like everyone else who agrees to the contract.) They have done this twice, UA & MM3. The fact that they have chosen NOT to excercise this right doesn't make it non-existent.

They've also done this in 4th Edition, as well as on the MtG side in terms of Artwork for their cards.

Wait, what? Big "citation needed" there, because I was pretty sure that there is no OGC in 4e or Magic (still am, actually).

 

[S'mon]

I am sorry that you feel it was not helpful.

I will note that the text you quoted was not a response to @kjdavies asking about the meaning of revocation in contract law (i.e. as used in treatises, judges and lawyers), but it was a response to @kjdavies asking about the meaning of revocation in a contract (i.e. as used by parties to a contract). Those are very different questions with different answers.

I could have written a post about what revocation means in general English usage, or what revocation means to the community of licensing professionals. That post would have a very different tone, stressing the determinacy of contractual interpretation over its indeterminacy.

My own feeling if that the post placing the parties' intent at the heart of contractual interpretation, and the resulting indeterminacy was more helpful in responding to @kjdavies question. I am trying to be helpful to @kjdavies based on nothing more than a couple of lines of text in a forum post, but I freely admit that I could be wrong and a different post with a different tone and emphasis may have been more helpful to @kjdavies. (And this is a good point to state that the fact I don't really understand @kjdavies particular situation, and thus it is difficult to know how to be helpful, is one reason that this is not legal advice to @kjdavies.)

I would suggest that if believe my post was not helpful, and you are trying to be helpful to be @kjdavies, it may be better for you to respond directly to @kjdavies with your own views about the best way to respond to his questions.

(It may also be helpful for @kjdavies to evaluate your view if you posted your identity and credentials, as other legal professionals have, but I believe you have not.)

Cheers,


-------------
In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

I believe your post was helpful and correct.

In English Law, the judges also take this approach to interpretation of terms, where legal terminology is used:

1. Did the parties mean the terminology in a legal sense?
2. If not, what did they mean?

They don't mechanistically apply the legal meaning to the terminology in a contract, if that would not reflect the intent of the parties.

Edit: After editing that last sentence three times for precision, my awe at @bmcdaniel's ability to pen such precise & well formulated analysis in forum posts is only further increased.

 

[Matt Thomason]

‘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

It seems to me that as the license itself requires you to sublicense your work under it , then being unable to revoke/de-authorize it means the license's own requirements requring you to pass on those same rights you had keep that license alive - you're required to open a part of your work (even if it's just the bits you used from other sources) via the OGL if you use it, which means you're then making an offer of that same license, under that license. It feels quite recursive in that manner - if you can't shut it down at the "top", you've no way to shut down the chain further down either or from it continuing.

I can see an argument that the use of the SRD itself could be pulled from future use, but what that doesn't seem to do is prevent other people's republishing of SRD content from being licensed. The license doesn't just give you a right to publish, it gives you a right (and in fact, an obligation) to sublicense.

What you couldn't do, I believe, is assume that a copy of a 3PP 4-page PDF entitles you to use the SRD, only the bits of the SRD used in that 4-page PDF.

However, it's currently perfectly legal as a 3PP to republish the OGC text of the SRD verbatim as your own product under the OGL (important note - the TEXT, you cannot simply clone the PDF with WotC's formatting, choice of fonts, etc.). Therefore, if the OGL 1.0a is still legal for that published copy (which is the big question to answer), then it seems to me the terms within requiring sublicensing are also still legal, as long as you follow your obligations properly (including the proper S15 credits to both that republished version of the SRD and everything it references, including WotC)

 

[Snarf Zagyg]

(It may also be helpful for @kjdavies to evaluate your view if you posted your identity and credentials, as other legal professionals have, but I believe you have not.)

Yeah, no. If I didn't want to be anonymous, I wouldn't post anonymously.

I always write that on the internet, no one knows you're a dog. But if you keep posting that you're a good boy and deserve some kibble, people can figure it out pretty quickly - and without you having to tell them, too!

Anyway, as you know, most of the people here wouldn't know the fine distinctions regarding legal professionals that would matter.* Some time ago, on a different forum, there was a poster who was wrong (egregiously so) about a topic in the law- it was clear that not only was he unfamiliar with that area of the law, further, he was hopelessly clueless about how the law works in practice. After a while, he revealed (in the whole, "Do you know who you're talking to?" manner that was ... unfortunate) who he was. And he happened to be a law professor who I respected immensely- the type of person that writes books and treatises that are used in law schools across the nation. Unfortunately, he made the mistake of trying to be authoritative about an area of the law he didn't understand, as well as not understanding the difference between the academic understanding of law and how law works in practice.*


*To be honest, as amusing as it was to be lectured on American law by a Canadian practitioner, why bother? This is supposed to be fun, right?

**"Pick up a copy of any law review that you see, . . . and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar."

 

[Knuffeldraak]

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?

I'm talking about the entire roster of weapons, as well as certain feats that supports firearms, and additive sets of rules and interactions related to Firearms. The DMG only 'very openly, shortly and vaguely' talks about firearms, for a narrative on 'what ammunition', and 'shoot X times before Loading'. These came no sooner than October 2017, and another portion in July 2020. Currently these still sit in UA while the Artificer (that was released in UA in the same year) has already come out, while the actual referenceable items/attacks were first seen in September 2018 with the release of Waterdeep: Dragon Heist

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.

You're right, I was mistaken on that the FCP played a role there. I thought it was since I saw it mentioned several times after the WOTC statement on why Felix wasn't sued or fired. Importantly to note is that, the fan art in question wasn't conforming to fair use on 3 factors, being that (1) it both wasn't transformative, that (2) the character was fictional, and that (4) their work didn't 'critize' the original in any way, and would compete with the other artists. MtG doesn't have an OGL like D&D has, so if the situation would have been escalated, there would no legal grounds to be setting foot on as a court would very likely not consider it as Fair Use. Not to mention that Nicol Bolas very much falls under the patented characters like D&D's Beholder.

 

[Nylanfs]

Not to mention that Nicol Bolas very much falls under the patented characters like D&D's Beholder.

Copyrighted, (or possibly Intellectual Property), not patented..

 

[Snarf Zagyg]

I believe your post was helpful and correct.

In English Law, the judges also take this approach to interpretation of terms, where legal terminology is used:

1. Did the parties mean the terminology in a legal sense?
2. If not, what did they mean?

They don't mechanistically apply the legal meaning to the terminology in a contract, if that would not reflect the intent of the parties.

As a general rule, American law tends to be more procedural and mechanistic.

In America, a great lawyer's true superpower is to turn every question into one of procedure.