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

[Nikosandros]

Yes, I just noticed this and am trying to fix it but my browser lost my edit. I apologise to you and @Nikosandros.

No worries.

 

[pemerton]

That is incorrect, it is meant to be a general purpose open content license controlled by a non-profit similar to how open source licenses are traditionally administered. It is drawing further lessons from the open source experience to tighten up the language and administration of the license.

I don't know what you mean by "administration of the licence".

The key issue in the current furore is not who owns the copyright in the text of the OGL. It is who enjoys what contractual rights against whom. Nothing stops that same question arising in relation to Paizo in the future. Certainly not the fact that the text that sets out the terms of their licence agreements happens to be copyrighted by a non-profit organisation.

 

[Nikosandros]

I don't know what you mean by "administration of the licence".

The key issue in the current furore is not who owns the copyright in the text of the OGL. It is who enjoys what contractual rights against whom. Nothing stops that same question arising in relation to Paizo in the future. Certainly not the fact that the text that sets out the terms of their licence agreements happens to be copyrighted by a non-profit organisation.

Sorry for reneging on what I just wrote, but since it is to somewhat concede a point, I hope that it can be forgiven. I now understand what you are arguing regarding Paizo and I think that you are actually correct. Probably, though, all the actions that Paizo is undertaking, would make a future case from them even weaker, but there's practically no way of making it impossible.

 

[pemerton]

Sorry for reneging on what I just wrote

No apology required - whether for concession or contradiction!

I now understand what you are arguing regarding Paizo and I think that you are actually correct. Probably, though, all the actions that Paizo is undertaking, would make a future case from them even weaker, but there's practically no way of making it impossible.

This is exactly my point, yes. I will add: I don't see how Paizo's activity now is any different from WotC's over the past 20 years. WotC's in fact in my view provides a stronger legal foundation, for the reasons @Steel_Wind has pointed out upthread (which I'm sure you've read, so I won't rehearse them in this post).

This is why I am really puzzled at the moment. It seems to me that the same (or at least sympathetic/harmonious) voices are asserting the following two things:

(a) WotC throwing its weight around makes it impractical to rely on legal rights against them;

(b) Going to ORC will be a solution because it gives us better legal rights.​

Even if (b) were true, which I doubt, it seems - in practical terms - to contradict (a). As in, what's the benefit of legal rights if you won't use them.

Of course, if people judge that Paizo (or Kobold or whomever) is in fact a more reliable licensor for the next N years of business, that's their judgement and it makes sense to follow it - I express no view on that at all. I just don't understand why that is being dressed up in legal terms that seem practically meaningless if no one is prepared to actually stand on their legal rights.

I've seen some publishers stating that they will go on with OGL 1.0 no matter what WotC says.

That's interesting, and hasn't been so prominent in those threads. Are those publishers who are licensed by WotC (and so standing on their rights against them) or who are using the OGL for licence regimes to which WotC is not a party (in which case it's still interesting but not as interesting!).

 

[Nikosandros]

Of course, if people judge that Paizo (or Kobold or whomever) is in fact a more reliable licensor for the next N years of business, that's their judgement and it makes sense to follow it - I express no view on that at all. I just don't understand why that is being dressed up in legal terms that seem practically meaningless if no one is prepared to actually stand on their legal rights.

I actually think that you hit the nail in the head. Paizo is seen as more reliable but - as it is common in this circumstances - we feel the need to couch those kind of considerations with a more "objective" argument. I don't know if I made any sense...

That's interesting, and hasn't been so prominent in those threads. Are those publishers who are licensed by WotC (and so standing on their rights against them) or who are using the OGL for licence regimes to which WotC is not a party (in which case it's still interesting but not as interesting!).

The last one I''ve seen is someone producing an adventure for Old School Essentials, which in turn clearly uses material licensed from WotC.

 

[UngainlyTitan]

Yes, it seems it was not really a safe harbor after all. Or maybe it was, but many don't realize it. I've seen some publishers stating that they will go on with OGL 1.0 no matter what WotC says.


The difference is that Paizo will not control the license.



You seem to have ignored the part where I mentioned multiple publishers using ORC. For example, Kobold Press will release Black Flag which will not be PF-conpatible, so the situation appears to me quite different.

No it is not really, Assuming ORC is similar in intent as the OGL then anyone reusing Open Content is running the same risks as under the OGL if a future richer meaner Paizo or Kobold Press or whatever wants to huff and puff and use lawfare to challenge the licence.

The Licence is not a law, it is a contract. Once entered into Wizards cannot change it. They can offer a different contract or claim to not recognise new use of the existing one but the onus is on them to prove that any given use of the contract is invalid.
However, if at the first huff the people using the licence runs away and does not defend their rights, the contract is useless.
Ditto for ORC.
These things are useful only if one actually makes a defence.

 

[bmcdaniel]

Secondly, losing the OGL as a defense line would be big, because having the OGL there in place is a huge, immediate defense to anything Paizo and the others want to do. You don't cede that sort of ground without a fight, especially when you have such a strong argument to use against it. Given all the power that argument currently holds, it would be moronic to give that ground up to Wizards and thus empower their legal machine by giving up one of the strongest defenses you have.

Perhaps, but even if Paizo is taking a big legal risk, my guess is that its still a smart move for Paizo. Paizo has told us that they intend to scrub Pathfinder 2E of elements that they consider to infringe on WOTC copyrights; I expect that this means that "magic missile" and "bag of holding" will be renamed, and more generic elements like "armor class," "ability check" and "class level" will remain. Now what are the outcomes:

1. WOTC doesn't sue. As a practical matter, people will take this as a concession that any terms in the Paizo 2E SRD aren't protected and people can use them.
2. WOTC sues but loses. Disaster! This leaves a wide open field for competitors.
3. WOTC sues but wins. Bad for Paizo, but now WOTC is a doubly villainous, and the community has an even stronger reason to move away from WOTC.

Big corporations tend to be risk averse. I suspect WOTC would prefer not to sue, and risk a definitive loss. Especially if the opponent is a well-funded and popular competitor like Paizo.

 

[HomegrownHydra]

Perhaps, but even if Paizo is taking a big legal risk, my guess is that its still a smart move for Paizo. Paizo has told us that they intend to scrub Pathfinder 2E of elements that they consider to infringe on WOTC copyrights; I expect that this means that "magic missile" and "bag of holding" will be renamed, and more generic elements like "armor class," "ability check" and "class level" will remain. Now what are the outcomes:

1. WOTC doesn't sue. As a practical matter, people will take this as a concession that any terms in the Paizo 2E SRD aren't protected and people can use them.
2. WOTC sues but loses. Disaster! This leaves a wide open field for competitors.
3. WOTC sues but wins. Bad for Paizo, but now WOTC is a doubly villainous, and the community has an even stronger reason to move away from WOTC.

Big corporations tend to be risk averse. I suspect WOTC would prefer not to sue, and risk a definitive loss. Especially if the opponent is a well-funded and popular competitor like Paizo.

Not only is there a legal risk for WotC to sue Paizo, but any litigation against anyone over the OGL will both exasperate and prolong the PR nightmare WotC is embroiled in and they certainly want to avoid that, especially with a big budget movie just about to be released. WotC has totally enraged a hornets nest and the most prudent response would be to back down but they outright declared that they won't. I'm fascinated to see how they attempt to navigate this impossible situation they've put themselves in.

 

[Hussar]

they outright declared that they won't

Really? I missed that. I did see where they walked back most of the things they have claimed. They have been silent as to whether they are going to attempt to deauthorize the OGL, but, again, that's not an outright declaration.

 

[GMforPowergamers]

My point is that the whole idea of a safe harbour is to provide shelter from shenanigans. If people flee the harbour at the first sign of shenanigans, then either (i) they're confused or (ii) it was never a safe harbour at all!

Anyone can send a C&D, or a claim for your money. You must get them all the time in your spam folder, just like the rest of us. That is not exercising control - it's just one party exaggerating it's legal rights. A safe harbour can't, and never could, stop that happening. The point of it is to actually create legal rights

I wonder if just putting out a statement like "We are looking into ways to rewrite or change the OGL, and our lawyers are investigating loopholes" would do the same thing or if they would NEED to have that 'it's not irrovacable' argument out there?