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

[AbdulAlhazred]

I don't think this is an accurate description of the legal state of affairs. WotC has no power to change the terms of the OGL v 1.0/1.0a. It has a power to promulgate variations, and each licensee has the power to choose which of the variants they will use when they reproduce, copy or modify OGC.

They could create an OGL with almost any terms whatsoever and then use content under that version, as spelled out in existing versions of the license. They can certainly release new content (and mixed new/old in such a way that it would be almost impossible to separate them) exclusively under a new OGL which lacks an "or any other version" clause. Yes, it is likely I can ignore that license and content for my own purposes, but there's still little reason for me to give my stuff away free to WotC to do virtually whatever they wish with it. lol.

In practical terms, what difference does it make?

There's been no actual example, from the first promulgation of the OGL up to now, of this ownership by WotC actually making a difference to anything. What hypothetical(s) are people envisaging?

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.

I want a regime under which I never have to worry, and apparently that can never be as long as it is rooted in things owned/controlled by WotC! YOU SAY I have nothing to worry about, but gosh that is comforting! lol. Not that I think you are crazy, but if I could operate under a license regime which I am entirely confident in the stewardship of, then I will do so in a heartbeat, all things being equal.

My reply to this is the same as to @AbdulAlhazred. Given that no issue (including the current one) has ever arisen in relation ship to WotC's ownership of the copyright in the OGL, or in relation to its authority under section 9 to promulgate variants, what practical difference does it make that under ORC a third party not-for-profit enjoys that right and that power?

This isn't true.

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now. The issue of who owns the copyright to ORC has no relevance to that. (I mean, maybe it will preclude Paizo calling its proposed new licence ORC v 2 - but that doesn't seem to me to be of any great significance.)

Sure, anyone using any license can decide that they were having a brain fart the day they attached that license to their stuff and try to claw back the rights they've given up! There are, however, differing quality levels of licenses and some which are actually backed by organizations and interests who can effectively weigh in when you are threatened. Again, this heavily favors a CC type licensing scheme, again all other things being equal. Section 9 IS however the mechanism by which WotC would try to argue its escape from the license, so it IS a weakness. ORC could improve on that, but IMHO its a pointless effort, CC is better. CC certainly seems better in the case of anyone who doesn't have a lot of stake in Product Identity, as the ORC/OGL only advantage is the "don't use my PI" clause. I'd still have good old copyright, etc. though, which has served every book publisher in existence quite well for a couple centuries.

 

[S'mon]

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.

Agreed, but they seem consistent on their plan to purport to 'de-authorise' the OGL 1.0 for all future creation.

 

[robconley]

My reply to this is the same as to @AbdulAlhazred. Given that no issue (including the current one) has ever arisen in relation ship to WotC's ownership of the copyright in the OGL, or in relation to its authority under section 9 to promulgate variants, what practical difference does it make that under ORC a third party not-for-profit enjoys that right and that power?

Please read the documents and faq at the links I posted before asking this question again. The answers to your questions are there. As a legal academic, I recommend emailing the different non-profits and ask them any detailed questions you have.

This isn't true.

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now. The issue of who owns the copyright to ORC has no relevance to that. (I mean, maybe it will preclude Paizo calling its proposed new licence ORC v 2 - but that doesn't seem to me to be of any great significance.)

You are mistaken and obviously did not read the faqs at the links I posted earlier or contacted the organizations in question.

If it is set up like the GPL or Creative Commons, then the terms of the license will stop Paizo from revising them for any content released under ORC. Whatever the flaw of the OGL are they are not shared by the GPL, CC, and other open licenses.

 

[pemerton]

I'll go ahead and say, "I disagree again." The issue is the legality and safe harbor quality of using WotC Open Game Content. Any court will (most likely) resolve both issues, and when that happens, there's no need of "trust" in its use as that would qualify as "verified."

I don't have view on whether or not litigation is sensible. Even for Paizo, it makes sense for them to declare a willingness to litigate, but in any actual circumstances they might be better of settling.

But I agree with you completely about what is at stake. That's what I've been trying to convey in my posts about "safe harbours" etc.

EDIT: I also agree completely with your post #1809.

 

[Matt Thomason]

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.

Yeah, as a layman I'd say copyright issues can come down to whether your sculpted shoulderpads are sufficiently similar to the other guy's, which is not really something you can sit down and theorize before the case even begins, while contract cases are more language-oriented, the words are right there and the only real problem (ha) is making sure you've done all your research on how the law will interpret them.

The former does not have any real theoretical rules to figure it out, while the latter does (even if it's a horribly complicated way that most of us would not be capable of) because it is an actual logic exercise rather than an "artistic expression" one.

 

[mamba]

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now.

not even calling it perpetual and irrevocable? Or are you talking about new material not licensed under it?

 

[pemerton]

the terms of the license will stop Paizo from revising them for any content released under ORC.

The terms of a licence can't stop anyone doing anything. They are inert legal norms.

I mean, the terms of the OGL prohibit WotC doing what it is currently purporting to do, but it is going right on ahead!

What makes legal prohibitions effective, when actors that they bind choose to ignore them, is enforcement. If no one is willing to sue then the terms are meaningless.

 

[Matt Thomason]

Sorry, but I'm not interested. One week they're saying this, the next they're saying that.

The trust is gone, and what you're saying isn't bringing that back. That's what's important.

The exact stance WotC - or the courts - ultimately decides to take is a footnote by now.

I'm almost in entire agreement to this. The first two sentences for sure, but I would be interested in seeing whether continued usage of OGL 1.0(a) is tested in court and possibly returning to it at a later date if precident is established the right way.

 

[S'mon]

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 think your latter question is a bit unfair on 'the community'. No, I think WoTC had this plan in mind all along.

On the former question, I believe there is no available 'OGL 2.0' document. WOTC's lawyers are probably working & reworking the draft even as I type! I believe they intend to release it tomorrow Monday 16th January, but that very well could be pushed back.

 

[pemerton]

not even calling it perpetual and irrevocable? Or are you talking about new material not licensed under it?

I'm talking about Paizo sending everyone a memo, just like WotC has done, asserting that it enjoys legal rights to do <whatever it wants to do> and insisting that everyone else accept that.

It's working for WotC even as we exchanges message board posts! The fact that the powers that WotC is purporting to exercise are not ones that it enjoys under the OGL aren't stopping it from purporting to exercise them.