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

[Thomas Shey]

Well, I sure haven't found any other reference to the scheme that predates D&D. I'd be very hesitant to copy that concept, although it certainly has been done by, for instance, World of Warcraft. Almost any of the specific chromatic dragon types could be argued to be based on some dragon legend, often from China. There are red fire dragons, black rain dragons, the yellow imperial dragon, etc. Still, if you recreate exactly the TSR 1974 colored dragons, you're going to have a hard time explaining how you weren't copying Dave/Gary.

I didn't say it existed before D&D. I just said once you're going to do dragons with non-fire breaths (and at least acid has some pedigree), the colors match up pretty well on association (other than blue which is a little odd, but lightning-sky has some connection).

 

[S'mon]

Yes, that matters to the hypertext SRDers. But I think that's probably a sideshow.

The key issue, once WotC accept that the licence remains on foot, is what is the scope of the permissions and powers conferred by section 4. And to me that seems to turn on the interpretation of the phrase the Open Gaming Content. (The term "use" is also important in that section, but its defined meaning seems so broad that I can't see how any of this is going to turn on its interpretation - except to the extent that its broad meaning helps provide context for making sense of the phrase "the OGC".)

AFAICS, after WoTC retract their standing offer, clearly I cannot contract with them as I can no longer accept their offer. I can only contract with someone who continues to offer OGC under the OGL. I can only use WoTC-originated OGC that someone else has already republished under the OGL.

 

[pemerton]

AFAICS, after WoTC retract their standing offer, clearly I cannot contract with them as I can no longer accept their offer. I can only contract with someone who continues to offer OGC under the OGL. I can only use WoTC-originated OGC that someone else has already republished under the OGL.

But I'm quite pleased with my idea for an interpretive argument that runs WotC's way (roughly, that the OGC means OGC which is included in the licensed work and is still under an offer to licence it. I don't think that that's necessarily the most natural or plausible interpretation of the phrase, but to me it at least makes sense, unlike all the stuff about "de-authorisation" which doesn't.

 

[S'mon]

Re colour-coded dragons, my guess would be that under English copyright (CDPA) the concept has too high a level of abstraction to be copyright protected. "Blues breath lightning, greens breath chlorine" etc I would guess would not be found to be protected.
Edit: thinking of the approach taken in cases like the Ideal Home case Ideal Home pays for its designs

I do think the specific visual depictions of the D&D dragons that originated with 3e would be copyright protected, though. In particular the look of the D&D black dragon is very distinctive. So some video game 'beholder type' monsters could conceivably be found infringing depending on the level of resemblance - once it is established copying has occurred, the question would be whether a 'substantial part' has been taken of the original copyright work (Francis Day & Hunter v Bron).

 

[S'mon]

But I'm quite pleased with my idea for an interpretive argument that runs WotC's way (roughly, that the OGC means OGC which is included in the licensed work and is still under an offer to licence it. I don't think that that's necessarily the most natural or plausible interpretation of the phrase, but to me it at least makes sense, unlike all the stuff about "de-authorisation" which doesn't.

Yes it's not nonsensical, but clearly it was not the intent of WoTC when they created the contract. Past WoTC could not stop future WoTC from withdrawing an offer to contract, but past WoTC was trying its best to stop future WoTC removing OGC from circulation. Everyone who contracted with WoTC under the OGL 2000-2022 knew what WoTC meant, and WoTC too knew, and said so in their FAQ.

 

[S'mon]

Racism in the context of an open content license is a non-issue because the larger community is already pushing against that, so it doesn't find any traction. Not saying I don't care about it. Just saying that in an industry that already has thin profit margins, bigotry just isn't a road to a market share worth mentioning. Certainly not worth actively blocking people from creating content under standing open licenses.

I'd say that objectionable content was a non issue mostly because the OGL already prohibits you from using WoTC or others' trade marks to indicate compatibility, so there is no possibility of brand tarnishment.

 

[S'mon]

I'm very interested in how they plan to say that legacy products are considered licensed via the 1.0a but not licensed enough to allow for new content to be created from them. Which the 1.0a, which they just said is considered an authorized license for legacy products, is what those products have been published under.

If WotC wants to do that, they're required to revoke or unauthorize the license and then declare "we are not going to pursue copyright litigation against all previously-published material under the 1.0a license, but will we on any new material published under the revoked and or unauthorized license."

What they cannot say is "this is an authorized product under the 1.0a" (even for a "grandfathered legacy product) while saying "but you can't use it to make additional new derivative material like this authorized license says you can" because those two statements are logically in opposition.

Unless they believe they can pick and choose which parts of the 1.0a license that they can "authorize" or "unauthorize." Which to me seems an even bigger can of legally-problematic worms than saying they unauthorize the whole thing or revoke the whole thing.

Sadly, I expect the soon-to-be seen legalese to be deliberately left vague because the goal isn't for clarity to exist there, but for confusion and uncertainty. I would love to be wrong, and really hope that I am.

joe b.

Yes, that's what I was trying to say.

 

[FrogReaver]

Yes.

Yes.

No. My argument is about the construction of the permission granted, under section 4, in respect of the Open Gaming Content. The reference of that phrase is not established by section 1(d), anymore than, if I enter into a contract with you to let your drive the car, the dictionary definition of "car" will tell us which car you are permitted to drive.

Section 8 clearly shows that OGC is expandable by future contributors.

Your argument then is, because OGC isn’t a static thing that it’s not defined and thus they can argue it means whatever they want. I find that argument non-sensical because OGC is defined and it’s also clearly expandable within the license as new content creators add to it. The ambiguity around OGC required for your conclusion just isn’t there within the license.

The authorized argument is 10x more plausible than this IMO. Not that it’s particularly plausible either.

 

[S'mon]

Yes it's not nonsensical, but clearly it was not the intent of WoTC when they created the contract. Past WoTC could not stop future WoTC from withdrawing an offer to contract, but past WoTC was trying its best to stop future WoTC removing OGC from circulation. Everyone who contracted with WoTC under the OGL 2000-2022 knew what WoTC meant, and WoTC too knew, and said so in their FAQ.

Although I said it's not nonsensical on its face, there does appear to be a logical contradiction. Per the licence, a publisher has to offer WoTC OGC on the same terms they received it, so they cannot both abide by their licence terms in OGL 1.0 and also not re-licence the WoTC OGC they received under the licence.

If I try to abide by WoTC's claim to withdraw their OGC from re-licencing, I am in breach of my own obligations under the OGL. I'm not allowed to amend the OGL to change the licence.

 

[pemerton]

Section 8 clearly shows that OGC is expandable by future contributors.

What do you mean by "OGC is expandable"? OGC is not a thing that gets bigger or smaller. It's a category of copyrighted material - predominantly text - within a contractual licensing regime.

Here is the text of section 8:

If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content.​

That is not a definition of anything. It establishes an obligation on parties to the contract who distribute OGC pursuant to the OGL. It applies to the publishers of the Hypertext SRD, who contributes no new OGC, as much as to (say) Paizo, who does contribute new OGC.

Your argument then is, because OGC isn’t a static thing that it’s not defined and thus they can argue it means whatever they want. I find that argument non-sensical because OGC is defined and it’s also clearly expandable within the license as new content creators add to it.

You clearly don't understand my argument.

Here's a question for you. Here is the text of sections 3 and 4 (the emphasis is added by me):

3.Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.

4. Grant and Consideration: 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.​

Do the two italicised terms refer to the same thing, or not?

If they do, then the permissions and powers granted pursuant to section 4 are confined to OGC that a licensee uses.

I think an alternative construction is that the phrases are not co-referring, and that the phrase in section 4 refers to the OGC that occurs in the licensed work. That alternative construction is suggested by section 2, which says that

This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License.​

"Applies" is not a term of art, but one way that the licence can "apply" to OGC is to licence its use; and if that is what is intended, then the conferral of permissions and powers by section may pick up the reference in section 2 to any OGC that contains the relevant notice. This would mean, for instance, that if you publish a work that uses OGC from the SRD, then you enjoy section 4 powers and permissions in respect of the whole of the OGC (ie any OGC) that is found in the SRD.

Do you have any view on which of the above two constructions is the more plausible one?

Whether or not you do, I also suggest that there is at least one additional construction available of the italicised phrase in section 4, namely, the OGC that occurs in the licensed work that is offered for licence pursuant to the OGL. That construction would draw even more heavily on the interaction with section 2, and particularly its reference to the OGC containing a notice that it may only be used under and in terms of the OGL. Because if WotC ceases to offer to license OGC in the SRD, then that OGC ceases to be OGC that contains a notice indicating that it may only be used under and in terms of the OGL.

You may wish that this third candidate interpretation is not correct. Perhaps its not. But the argument for it is not nonsensical. It's reasoned by reference to the text of the contract. That's how contractual interpretation works.