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

[kjdavies]

I understand an irrevocable licence to be one which cannot be revoked. Clearly a licence given on the terms set out the OGL v 1.0/1.0a can be revoked, in at least one context, namely, breach (as is set out in section 13).

I also see that @bmcdaniel has replied, and what he says is (i) very clear and (ii) seems absolutely correct to me. Irrevocable is not a "keyword" - it's a word with an ordinary language meaning that can be used in a contract to convey whatever it is the parties want to convey by using it.

Right, I was seeing a distinction between 'revoked' and 'terminated'. To my mind 'revoked' is like being withdrawn or backed out of, while 'terminated' means 'ended'... I see a distinction between those words that might not exist in law.

 

[bmcdaniel]

Even so, I am somewhat surprised. While I would defer to you on this, it was always my understanding that a difference between Europe and America was that Europe tended to embrace standards while America embraced rules. See, e.g., GAAP and IFRS.

This is correct insofar as IFRS is more principles-based, whereas GAAP is more rule-based. However, this can be misleading because (at least for private companies), the US gives much more legal flexibility about whether to do any financial reporting at all, and if so, whether to use IFRS, GAAP or accounting standards of their own making.

Let me give you an example that came up in my own practice this week: A Cayman Islands domiciled venture capital fund is obligated by law to prepare and deliver to its investors annual audited financial statements (audited by Cayman Islands auditors). The Cayman Islands fund may choose to adopt GAAP or IFRS accounting in preparing the financial statements, but it must choose and apply them as stated. A US domiciled venture capital fund is not obligated to deliver any financial statements by law. In practice, US domiciled venture capital funds agree with their investors to prepare GAAP audited financial statements, except that they do not consolidate the underlying investee companies with the fund, even if consolidation is required by GAAP (i.e. the fund and fund investors have agreed to audit the fund using modified GAAP principles). The reason that US funds/investors choose non-consolidation is because, in the particular context consolidation is a poor representation of fund investors actual underlying economic interests. Question arises: If Cayman Islands domiciled fund invests in US domiciled fund, can Cayman Islands fund auditors rely on the US domiciled fund audited financial statements?

To the principal point: which legal system is more substantive and which is more formal? Cayman Islands law which allows the use of a principles-based auditing (IFRS) but which requires you to use the audit rules without modification; or US law which allows you to choose whether or not to have any audit at all, and if you do choose to have audits, allows you modify auditing rules to match the desires of the people who will benefit from the audit.

In my view, in this instance, the more flexible US system is actually more substantive, while the less flexible Cayman Islands system is more formal.

I gave the example in the context of venture capital funds, but this also applies to private companies generally. US private companies are not required to prepare audited financial statements; UK/India/Hong Kong/Singapore companies are.

Of course, I fully recognize that this is a particular anecdote, and not necessarily an anecdote I would have chose except it specifically responds to the remark about IFRS and GAAP. For listed companies, European companies use principles based IFRS, while US companies use rules-based GAAP (although they may also present additional, non-GAAP financial statements). In this case, I think I would call the US system more formalistic, although its a closer call than you might imagine.

 

[kjdavies]

It would not have made it impossible that they would try, but I feel like it would have made it less likely.


AIUI (IANAL), you have to comply with both licences. If you cannot do that, because complying with one makes it impossible to comply with the other and vice versa (as I believe is the case with CC and OGL), then you cannot combine the materials so licensed unless you can obtain a third licence that is compatible with one of the other two.

That is what I would expect, but I'm not familiar enough to CC (which one?) to know they can't be used compatibly. If you can comply with both I would expect you could mix content licensed under both models. It gets a little gnarlier, I imagine, if both require you to sublicense and the rules for that differ (which I don't know they do and I would include in the 'comply with both' assumption earlier).

 

[Knuffeldraak]

Ok, so where was the Fighter (Gunslinger) ripped off by WotC?

As I said, I failed to notice the other page that explains a lot of the similar info.

 

[Anon Adderlan]

This is a long tedious reply to a long tedious subject, but this discussion has been quite comprehensive and I wanted to reply for my own records. Thankfully folks like @bmcdaniel have said much of what I wanted to here and here. I did stop reading at post #600 however as I simply do not have the time, though it's likely all the points I would want to see made have been. The TLDR is:

• 'Unauthorization' is not a legal concept nor defined in the license.
• There's a termination clause and it does not specify that #WotC has either the power to unauthorize or revoke the license at will.
• The rights are granted between contributors, not #WotC and named third parties.
• You cannot interfere with contracts you are not a party to, even if you wrote the contract.
• This is an attempt to intimidate customers through legal ambiguity rather than legal action which is costly for everyone.
• Organizations whose entire mission is to protect these rights will likely step up if legal action is taken, and in fact the EFF has already made their position clear.
• The first avenue of attack will be persuading distribution channels such as #DriveThruRPG and #Kickstarter to cease carrying non-compliant products.

the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD.

No, it grants a license to use 'Open Game Content' in exchange for not using 'Product Identity' or making claims as to compatibility.

But "perpetual," in licensing law, does not mean "irrevocable."

There's a termination clause, so by definition it is 'revokable', but only if the terms of that clause are breached.

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.

Just because you wrote a contract doesn't mean you can revoke it at will.

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.

The rights are granted by 'contributors', not by #WotC to named parties. And you become a contributor by creating content and declaring it either 'Open Game Content' or 'Product Identity'. #WotC cannot revoke a contract between such contributors. They cannot declare the contract revoked simply by claiming it's "no longer authorized", which is neither established legal language nor defined in the license. The new license can only invalidate use of the previous one if the subject sighs it.

The open license will always be valid for any products published while the open license was open. WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any new material as of the date it was revoked.

If the license is revoked the effects would be retroactive.

some people claim that the OGL is actually not necessary, that all the material in the SRD is "game mechanics," and therefore cannot be copyrighted. It is true that "game mechanics" cannot be copyrighted, but what constitutes "game mechanics" is a nebulous subject, interpreted differently by different courts, and not a matter of settled law.

Yes, it is. And if you can express the same mechanical process in a different way you're not violating copyright.

In game mechanics cases, the courts were usually dealing with things like rolling a dice and moving a set number of spaces, like in "Sorry." I have not been able to find any games mechanics cases on RPGs.

Check the patent filed by #WotC regarding #MtG.

It is likely that the SRD is a combination of "game mechanics" and original copyrightable content.

Of course it is. That's why it was licensed under a copyright license to begin with.

The six ability scores and twelve classes are specific and complex enough that many courts probably would be uncomfortable calling them mere "game mechanics" that cannot be copyrighted. Other courts might interpret it differently.

Perhaps. But the courts aren't exactly charitable to those who attempt to treat copyright issues as trademark or patent ones.

not only is the SRD protected, but any derivative works of the SRD are protected. A derivative work is a work based on, or derived from, a work that has already been copyrighted. Copyright protections protect not only the original work, but also any derivative works. I cannot write an eighth Harry Potter novel and then go out and sell it. Harry Potter 8 would not be a copy--a "reproduction" in copyright parlance--because Rowling has not written Harry Potter 8. But I still could not write it myself and sell it. Why? Because Harry Potter 8 would be a derivative work.

The majority of RPGs are 'derivative' works, so that point is largely moot. And D&D itself is derivative of the works of H. P. Lovecraft, Fritz Lieber, Jack Vance, Robert E. Howard, J. R. R. Tolkien, etc. So one has to wonder what claims #WotC can make, or even what the D&D brand actually consists of. And this hobby involves creating derivate works by definition. Unlike other media an RPG requires you to create your own content in order to engage. Hell the OGL itself requires modification by adding your declarations of Open Game Content and Product Identity to it.

There's a lot of nuance on what is or is not derivative. For instance, someone wrote a Harry Potter Encyclopedia, and J.K. Rowling sued, and the Encyclopedia owner won on the copyright claim, because the court held that the Encyclopedia was different enough--the Harry Potter books were novels, not encyclopedias--that it was not a derivative work. The encyclopedia was not competing with her novels, but merely assisting the reader.

No, they didn't. They lost, dropped their appeal, and then published a modified 'unofficial' version, likely after an undisclosed settlement. Before this they ran a Wiki, which they were allowed to proceed with because it wasn't 'commercial'. It also involved content copied verbatim, and referencing trademarks like Harry Potter®.

The second 'lost dog' point is mixing up revocation of an offer (in a unilateral contract) with the question of whether WoTC can terminate an existing contract. Or even stop third parties contracting via a sub-licence.

Despite use of the term there are no sub-licenses, as all such right are between 'contributors'.

An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.

No, an open license is a contract which is 'signed' by virtue of publishing under it. It is a contract between all such contributors. And even if a set of contributors agree to 'revoke' their contract, they cannot make that choice for those contributors who choose not to.

Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.

The OGL is not a unilateral contract. A promise is made to permit the use of Open Game Content in exchange for not using Product Identity or making claims of compatibility.

It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it.

The contract is between 'contributors', not #WotC.

If DT and itch play along with WotC, it's more a business matter than a legal one anyway.

Yes, it is. And they've already made favorable deals with #Kickstarter, likely in exchange for some say in which projects are permitted.

Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions.

Indeed, and should #WotC decide to pursue this line of attack they'll have more to worry about from the organizations dedicated to defending those precedents.

So in terms of what is actual legal language is 'deauthorizes' legal language?

It's not, and it's telling that #WotC said "no longer authorized" rather than "revoked".

I've published material that is 100% OGC content under this license that is not derivative of WotC's SRD, if they revoke the license, is all the material I released now suddenly not open material?

If you haven't used any of #WotC's Open Game Content then they are not a party to the contract you agreed to.

The lack of the word "irrevocable" really cinches it for me. Licenses with no duration specified are often considered to be revocable at will (not in some states, but then it could end up being a state-by-state issue).

'Perpetual' is a duration.

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).

Even if this avenue could be taken eventually it would only allow them to revoke the right to use their Open Game Content, not anyone else's.

OGL1.0a clause 2: "No terms may be added or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License"

Doesn't that mean they can't change or de-authorise the license?

It means that any content licensed under the OGL 1.0a cannot be licensed under the OGL 1.1.

Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly

...

If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'.

I believe this is accurate.

I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s.

#WotC doesn't care. And maybe that wouldn't be so bad.

To put some levity in this rather grim developments, I'll point out that when people on rpg.net and therpgsite generally have the same sentiment about some issue, you indeed know that the End Times Are Nigh!

All kidding aside this is genuinely significant.

Can I ask how 3pp increase core D&D sales?

At the time of the license creation #WotC found that publishing 'support' products cost them more money than allowing third party publishers to take that burden and thereby created an entire 'D20' ecosystem. Then actual plays like #CriticalRoll accelerated that popularity even further. Now for some reason #WotC feel they're losing more money by not charging these free promoters.

If lawfare is really their intention, then they are definitely trying to vindictively destroy the present ecosystem.

I'm all but certain they consider the 'old' fanbase to be a liability, and have no issue alienating them.

This is not a one-sided contract where WOTC gives and everyone else takes. Both parties agree to give their OGC material over to any licensed user. Its terms specify consideration from both/all parties of the contract.

Yes.

If you agree to license your copyrighted work to me under the terms of the OGL, we have an agreement. WotC is not a party to our agreement.

Yes.

If I'm not mistaken, trademark law would allow us to indicate compatibility, etc., something explicitly restricted in the OGL. That is, I can't say "compatible with D&D 3e" unless I have a separate license with WotC saying so. This is a consideration, yes?

Ditto, by using open content I have to allow others to use my open content.

OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right?

Yes.

Does it matter that Section 9 of the OGL provides a mechanism for updating the licence but does not specify a mechanism for de-authorizing previous versions of the OGL? Is there a meaningful distinction between updating the terms and revocation of the license itself?

Yes.

Surely 1.0 continues its perpetual agreement until you make an alternative agreement via 1.1. Even if WotC do have revocation powers, they would have to actually contact you in order to revoke the 1.0 license, and can't rely on the fact they revoked it in a clause in a brand new license you never agreed to or even knew existed (honest, guv, I never heard of no 1.1 license and neither has my dog!)

Yes.

The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.

By requiring reproduction to use #WotC has implicitly granted licensors the right to copy the license.

This uncertainty is fundamental to the current unrest, I think.

The legal ambiguity is by design and it's not the first time #WotC has weaponized it.

 

[Steel_Wind]

As far as litigation culture is concerned, I don't have as strong a sense of it but what I have heard is that US litigation culture (including courtroom behaviour) is far more aggressive than in Australia.

Oh I think that is definitely true. There have not been horsehair wigs anywhere here since... well ... I'm not sure they were ever formal court wear at any time, really. But counsel here all still gown, (robes and tabs) -- and "my Friend" "my Honourable Friend" and "my Learned Friend" are still observed in the courtroom at all times. If you don't, you will antagonize the hell out of the court.

For a while in the early 2000s, we started to retreat from gowning requirements to make it less formal (and more comfortable) -- but those requirements have come back lately more than they ever have been in 50+ years. It may be at all time high now. We gown when appearing in front of even those who were until recently referred to as Masters now (prothonotaries) which has never been case until now (now they are Associate Judges and are referred to as "My Honour". For that matter, judge are still "My Lord/Lady" in some Canadian provinces.

What judges have always noticed is that the conduct of witnesses in the presence of gowned counsel is different; and when it comes to self-represented litigants, they seem to be more polite and observant of decorum with the court when there are a dozen counsel gowned waiting in the courtroom, too.

Because legal costs have increased and the number of self-reps in our court has spiraled upwards over the past 15 years, gowning is being expanded in an attempt to keep incivility in our court rooms in check.

[EDIT: To breathe further life into this painted picture, I am a litigator and I was last in a Toronto courtroom on February of 2020. Everything has been moved to Zoom since; while criminal trials; some civil trials, appeals in the Court of Appeal and some long motions have moved back to in-person hearings -- the broad mass of all courtroom work, 90% on the civil side, is all via Zoom. I far prefer it that way; Metro Toronto is a city of 6.5m people and travel times are brutal. When it's on Zoom, my computer room is 20 feet from my bedroom. Travel time is ~10 seconds.
.
So I OFTEN will gown in my own bedroom in the morning 15 mins before to attend at a case conference or other motion hearing via ZOOM, sit down in front of my computer for the hearing, and then when it's over, go back into my bedroom to take it all off.

Except my track pants, that is. I just keep those on throughout. ]

 

[Snarf Zagyg]

Of course, I fully recognize that this is a particular anecdote, and not necessarily an anecdote I would have chose except it specifically responds to the remark about IFRS and GAAP. For listed companies, European companies use principles based IFRS, while US companies use rules-based GAAP (although they may also present additional, non-GAAP financial statements). In this case, I think I would call the US system more formalistic, although its a closer call than you might imagine.

As I wrote, given this is going out of my areas of expertise, I will defer to you. My impression on this (talking to the "transaction guys" here) is that the flexibility in the various United States systems isn't because the issues are substantive, and that the concern is over substance; instead, it's because in many other countries, the concern is substantive and not procedural. In other words, the reason the United States can be flexible is because ... if there isn't something on point, you aren't cover (if there is no rule, there is no "spirit"). Well, that plus a lot of ability to contract around things ...

ETA- moving pretty far off course, but this is fascinating to me!

 

[pemerton]

It seems to me that as the license itself requires you to sublicense your work under it

Or rather, it requires you to offer to licence the OGC that you use to all comers - and some of those licences may be sub-licences. I think this point is not merely pedantic, as it helps inform the final part of this post.

, 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.

<sinp>

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)

This is the point that @S'mon and I were making from around the time of the press release - see eg this thread: OGL - The OGL 1.1 is not an Open License

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.

That's not clear to me. Section 4 of the OGL v 1.0a reads "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content." What does "the Open Game Content" refer to here? The OGC that you have actually used? Or the OGC that is found in the document that has been licensed to you, and cited by you in your Section 15 declaration?

And which OGC, then, is covered by your sub-licences?

I don't think either answer is obviously the right one. (It may not matter which is correct, either, given that we have hypertext SRDs.)

 

[Ruin Explorer]

As I said, I failed to notice the other page that explains a lot of the similar info.

Wow, I see. That's wild that you thought that was ripped off.

 

[pemerton]

When you write ">" do you mean that the formalism is strictly greater or greater than or equal? Also, is the set of all possible legal system a fully ordered or just partially ordered set?

I am not a logician or mathematician, and so <insert random musings here>.