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

[Thomas Shey]

As I've repeatedly said, I'm an academic lawyer with an interest in analysing private law doctrines and relationships. And I think some of the discussion and calls for action around this OGL controversy have not been based on a really solid understanding of these things.

Well, it doesn't help that IP law is such a bog that not only can you get people who avowedly are knowledgeable in the related subject not be in agreement, that even a somewhat experienced layman can have trouble figuring out who to believe. I know enough to know that I wouldn't even take a general purpose business lawyer's word on it, and that's probably as far as most of them can go.

 

[Thomas Shey]

Because they want to sell their product?

I mean, nothing up to now has stopped 3PPs trying to establish new RPG ecosystems around new SRDs licensed under the OGL. But they haven't been doing so, presumably because they think there is no market for them.

Some people seem to think that over the past month or so the market for non-PF, non-D&D-adjacent RPGs has grown tremendously in size. Personally I'm not sure what the evidence for that is.

I have to point out there's no small number of people outside the D&D-sphere who were using the OGL as a tool of convenience who are utterly uninterested in fishing in that pool. I know at least three personally who will probably be hopping over to the ORC who have no interest in any D&D adjacent at all in their publishing. That has nothing to do with whether its a particularly vigorous market or not.

 

[AbdulAlhazred]

I asked a friend -- avid 4e fan -- if there are still people creating 4e content.

"Oh yes! I'm well-connected. There are dozens of people!"

lol, it isn't actually hard to get a 4e game going. There are plenty of people around who like 4e.

 

[S'mon]

Perhaps for clarity I need to add: some people seem to think the current furore has some connection, in legal terms, to section 9. But I've read just about every post i this thread, and I don't think I've seen any of the lawyer contributors try to make out such an argument. In my view, those who connect what is going on at the moment to section 9 are just wrong.

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

 

[Matt Thomason]

You do bring up an interesting point. It sounds like GG is basically using OGL to PREVENT anyone from using their content, which is a behavior that would certainly NOT be possible under a CC license! This sort of flaw would also exist in ORC if it provides a similar type of clause, effectively a dominant publisher can force you to either be 'incompatible' (at least in terms of terminology, which means a lot to gamers) or else pound sand.

From my own perpective, I don't really see this as a problem, because I've understood the OGL worked like that since shortly after it was first published. That's a part of the agreement, and not some loophole someone has discovered and is attempting to use years later. One of my own first thoughts were that I could claim my spell names are PI, allowing the reuse of the mechanics but not the names themselves, if I didn't want people making something compatible with my work.

The OGL does not promise everything made under it will be compatible with everything else, or even imply creators have any moral responsibility to ensure that. It simply lets you contribute some game mechanics (or, really, pretty much anything you want) to a central "pool" that any other OGL licencee can draw upon. I've seen plenty of products where the only OGC was the stuff they had reused, and honestly don't see any real problem with that because I've never read the license to imply that was a requirement. Much of the reason for this is because the d20 Trademark License did specifically require that you have a specific amount of Open Game Content, so anyone who was there at the beginning and read the both alongside one another could notice the omission of such things in one and the inclusion in the other.

I don't see this as a flaw. I see it as a reason why multiple types of license exist, to suit the needs of the person releasing material under them. If someone chooses to use the CC license, then yes,they have to grant those extra rights. The choice, however, needs to be the original creator's.

I am far more concerned with holding people to the license they have chosen to agree to (mainly WotC), than with an ideal of "everyone working together". I like the idea of the latter, but I'm going to be far more judgemental over people with the former.

 

[Ondath]

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

The leaked OGL 2.0 also has a lot of provisions that contradict the promises WotC made in their January 13 statement, so I'm not sure if this will be implemented anymore.

 

[S'mon]

Well, it doesn't help that IP law is such a bog that not only can you get people who avowedly are knowledgeable in the related subject not be in agreement, that even a somewhat experienced layman can have trouble figuring out who to believe. I know enough to know that I wouldn't even take a general purpose business lawyer's word on it, and that's probably as far as most of them can go.

I think it's fair to say that the outcome of cases on Copyright, especially non-literal copyright infringe, tends to be unpredictable. I think people who work and teach in the field of copyright would agree to that. I've given a few examples upthread from England, like the Ainsworth, Pally Screen, and Temple Island cases.

However, while Contract cases can go in unexpected directions, especially where the issues at stake are complex, I don't feel that Contract law has the inherent uncertainty you see in Copyright cases. A Contract case might go wonky 8 or 10% of the time - maybe the judge didn't understand the issues, maybe it was argued badly by the lawyers on one side, etc. With Copyright I see cases well argued on both sides, and a perfectly reasonable judgment made, and often it can go either way, no way to predict. I'd guess in the USA with juries involved that must be even more the case.

 

[Matt Thomason]

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

I'm also worried about the "type of work that could be licensed" part.
So if you had been working on VTT software, you wouldn't even have gotten the six-month grace period and would suddenly find yourself with a ton of unusable work, if you believed WotC had the right to pull your existing OGL 1.0a rights from under you.

 

[Matt Thomason]

The leaked OGL 2.0 also has a lot of provisions that contradict the promises WotC made in their January 13 statement, so I'm not sure if this will be implemented anymore.

Certainly, but the problem is that 1.1 was an indication of what they really want, and will likely be looking for ways to do in the future with less opposition, such as doing it a bit at a time to avoid such a huge backlash.

 

[pemerton]

Here's a screencap from the leaked OGL 2.0 FAQ:

From my reading of that, it does sound to me that they plan to rely on a strained interpretation of Section 9.

Thanks for that.

As I read the v 1.1 leak, it relied upon a consensual variation together with an implausibly broad acceptance provision. Although it had broader language in its FAQ. I think the bit you've posted is definitely clearer in its allusion to section 9 - have the actual contractual terms been leaked? (I also wonder: did WotC rewrite along clearer section 9 lines given the apparently widespread community acceptance that section 9 does confer a unilateral power of contractual variation?)

I don't think it changes my earlier point - Paizo,, too, in the future can assert strained interpretations of its legal rights (I mean, as you know, the right of variation that WotC now asserts is directly contradictory to what they posted in their FAQ in the past). The issue that is driving the current furore is not legal right, but commercial reality (ie WotC is confident that few are prepared and able to litigate).

Paizo has said they'll defend vs any attempt by WoTC to claim the OGL 1.0 can't be used.

That makes sense to me, given (i) Paizo's size, and (ii) the centrality to Paizo's business model of the OGL v 1.0.