OGL Hypothetical: I ignore OGL 1.x

trancejeremy

Adventurer
I am thinking about doing this, as I have probably a dozen OSR projects that are anywhere from 10% to 95% done, and since I use a lot of converted content from Pathfinder and Tome of Horrors, 1.1 isn't even an option, really.

The problem is, where do you distribute your work? DTRPG has like 90% of the PDF market (maybe higher) and they are pretty much in kahoots with WOTC. Itch.io?
 

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clearstream

(He, Him)
If I had to guess, my guess would be that on the balance of probabilities, they'd probably ignore you. But they could sue you. It's a strategy question for them. They may be right now planning a flurry of Cease & Desist letters to anyone publishing under OGL 1.0.
I think essentially ignore is likely, too. @Reynard described their business model as mail order. It's hard to imagine a mail order product being above the bar for commercial relevance to Hasbro. However, I think they might send a C&D simply in order to a) reserve their rights, and b) avoid inadvertently diluting their rights as may become relevant to other future cases.
 


S'mon

Legend
I think essentially ignore is likely, too. @Reynard described their business model as mail order. It's hard to imagine a mail order product being above the bar for commercial relevance to Hasbro. However, I think they might send a C&D simply in order to a) reserve their rights, and b) avoid inadvertently diluting their rights as may become relevant to other future cases.

In Trade Mark law you do have to do that. Not in copyright though.
 


S'mon

Legend
Wouldn't the totality of their IP under the (putative) license include trademarkable elements?

Well they say themselves, at least impliedly, that the SRDs do not contain claimed trademarks. And they've let everyone use that OGC freely for 22 years. So it would be really weird for them to now claim trademark infringement against someone using their SRD material.

So, no. AFAICS they cannot sue for trade mark violation here.
 

pemerton

Legend
Well they say themselves, at least impliedly, that the SRDs do not contain claimed trademarks.
An exception: this SRD <https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf> opens with a statement of product identity, and then goes on to say that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License."

Most of the stuff in the PI declaration is not found in the SRD, but at least one bit of it - umber hulk - is. I have a hard time seeing how that might have become a WotC trademark, but they don't seem to be excluding that possibility.
 

S'mon

Legend
An exception: this SRD <https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf> opens with a statement of product identity, and then goes on to say that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License."

Most of the stuff in the PI declaration is not found in the SRD, but at least one bit of it - umber hulk - is. I have a hard time seeing how that might have become a WotC trademark, but they don't seem to be excluding that possibility.

I can't find Umber Hulk in the SRD? The U monster section only has Unicorn.
 

Ondath

Hero
I can't find Umber Hulk in the SRD? The U monster section only has Unicorn.
The Umber Hulk is definitely not in the SRD. Source: It was a pain my bum when I had to add it to my Roll20 monsters by hand when I could simply drag-and-drop the SRD monsters.
 

Jerik

Explorer
The SRD 5.0 does not include statistics for the umber hulk, but it does mention it twice: in the spell entry for Guards and Wards (one of the components is "a small amount of umber hulk blood") and in the description of Tremorsense ("Many burrowing creatures, such as ankhegs and umber hulks, have this sense.") Given that they apparently intended to preserve the umber hulk as product identity (hence the lack of monster entry), I'd guess this was just an oversight.

I don't see why it's surprising that they'd consider the umber hulk a WotC trademark, though. It's just as much an original D&D monster as the beholder and the mind flayer.
 

S'mon

Legend
I don't see why it's surprising that they'd consider the umber hulk a WotC trademark, though. It's just as much an original D&D monster as the beholder and the mind flayer.

It's not functionally a trade mark as it's never been used as a badge of origin. But they could conceivably use it in the future, as Beholder arguably was with Eye of the Beholder game. A book or game title is not necessarily a badge of origin > un/registered trade mark, but it could be.

Anyway, it still doesn't make much sense to use TM law to sue someone for use of SRD material.
 

Jasperak

Explorer
I think this has been asked in the previous 3k posts I've read. What if Reynard just published the SRD and otherwise didn't include anything that could even remotely be considered copyrightable?

Would that make the discovery process go faster?
Is there a way to force WOTC's hand to force them to issue a C&D?

Is there a way make them look legally negligent in protecting the SRD. I mean if they are going to claim that you cannot publish under 1.0a, then the 5.1SRD reverts to being protected by copyright right? Isn't there some point where WOTC loses copyright protection if they don't actually try to protect it?

Asking for a fiend.
 


Dausuul

Legend
But the rightsholder (here, WoTC) could use a US court order to get the work taken off drivethrurpg, easily enough. They'd presumably have already DMCA'd it anyway.
Could hypothetical-Reynard then sue Wizards for tortious interference with a business relationship?

I'm not a litigator in any jurisdiction, but I think @S'mon is correct about discovery in his post not far upthread. The legal issue will be whether or not the defendant - ie hypothetical Reynard - enjoys a contractual licence, which then provides a defence to the breach of copyright claim. This in turn will depend on what the outcome is of the question S'mon identifies.

As long as the defence makes it clear that that is the entirety of their defence - which would probably mean, in practice, conceding the copyright point - then what documents is the plaintiff going to insist on discovering? It's an issue of contractual interpretation. As defendant, hand over all your copies of the OGL, your published books, your Wayback Machine printouts of the FAQ, etc, and bring on the actual trial!
What if Wizards wanted to challenge whether hypo-Reynard was in fact in compliance with the terms of the license?

The OGL forbids you to do a number of things; you can't reproduce WotC's product identity, you can't use WotC's trademarks (even nominatively), you must reproduce the notice in every copy you sell, etc. If you knowingly do any of those things, you have 30 days to cure the breach or the license auto-terminates. Could Wizards say it wanted to dig for evidence that hypo-Reynard had done one of those things and failed to cure it within 30 days, and use that to drag out discovery?
 
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Cadence

Legend
Supporter
I'm pretty sure I wouldn't do anything to find out unless my publishing was under an LLC and I had talked to a lawyer about the requirements of doing an LLC legitimately and what was allowed in this context so that things like my house weren't on the line...
 

kjdavies

Adventurer
I don’t think this is quite correct. So far WotC have been very careful to state that OGL 1.0a is “no longer an authorized version” and can not be used to distribute, etc. open game content under the OGL. They have not explicitly revoked it or released the other parties from their responsibilities under the license. The other clauses of the license are under effect. Does WotC saying it is no longer authorized, remove the ability of Green Ronin to go after Kobold Press for violating the license somehow (not to suggest they have)?
The writing of the draft is a bit ambiguous on this, IMO. Or perhaps equivocation.
  • OGL v1.1 licenses SRD 5.1 content ("Licensed Content"), and OGL v1.0a is no longer authorized;
  • What used to be described as 'Product Identity', and all SRDs previously published by WotC, are "Unlicensed Content";
  • Unlicensed Content may only be used by license of a separate agreement with WotC.
If 'authorized' means OGL v1.0a is totally revoked (and I'm not convinced, for reasons that have been described many times here by others), then I believe it could be read that 'open content' is still 'open content' licensed under OGL v1.0a -- a separate agreement. That is, 'Open Content' is 'Unlicensed Content' in view of OGL v1.1, but OGL v1.0a is in fact a separate agreement, if not revoked.

That is, I don't believe they did say open content cannot be distributed under OGL v1.0a, not in those words... but I do believe they'd be happy for us to believe that is truth. They did say 'Licensed Content cannot be distributed under OGL v1.0a and Unlicensed Content cannot be distributed under OGL v1.1'.
 

pemerton

Legend
I can't find Umber Hulk in the SRD? The U monster section only has Unicorn.
The Umber Hulk is definitely not in the SRD. Source: It was a pain my bum when I had to add it to my Roll20 monsters by hand when I could simply drag-and-drop the SRD monsters.
In the document I linked to, it is mentioned twice: in the Tremorsense entry, and in the spell components for Guards and Wards.

EDIT: Jerik already posted the above!

The SRD 5.0 does not include statistics for the umber hulk, but it does mention it twice: in the spell entry for Guards and Wards (one of the components is "a small amount of umber hulk blood") and in the description of Tremorsense ("Many burrowing creatures, such as ankhegs and umber hulks, have this sense.") Given that they apparently intended to preserve the umber hulk as product identity (hence the lack of monster entry), I'd guess this was just an oversight.
It's not an oversight, I don't think. The SRD, as I quoted upthread, expressly states that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License."
 

pemerton

Legend
Could hypothetical-Reynard then sue Wizards for tortious interference with a business relationship?
My knowledge of the tort of interference with a contractual relationship in the Australian context is thin, and in the US context thinner.

But my tentative view is that while what you say might be possible in principle, it would be an absolute nightmare in reality. Because WotC is now the defendant, and so has both an interest in stalling and the capacity to do so via all the sorts of legal manoeuvring described in this and other threads. Also, because tortious claims generally turn heavily on questions of fact, the evidentiary and discovery aspects become much more involved.

I guess there's a chance hat hypothetical-Reynard might get a settlement out of it.

What if Wizards wanted to challenge whether hypo-Reynard was in fact in compliance with the terms of the license?

<snip>

Could Wizards say it wanted to dig for evidence that hypo-Reynard had done one of those things and failed to cure it within 30 days, and use that to drag out discovery?
So WotC is trying to sue for breach of copyright (on the basis that there is no licence) and in the alternative sue for breach of the licence (on the basis that if there is a licence on foot, its terms have been breached)? Their pleadings would have to make out both cases in a fashion that doesn't rely on contradictory claims or evidence.

I doubt even US discovery law lets them plead breach of the licence with no particular breach pleaded. And hypothetical-Reynard can just hand over copies of all his publications, which will exhibit (or not) the alleged failures to comply - the licence doesn't impose any obligations that require conduct that cannot be evidenced by handing over those files, I don't think.

As far as the substance of the alternative pleading, I think hypothetical Reynard might be best accepting the allegations of breach of the licence and offering to cure as requested. To me it serves the defendant's interests, in this case, to make everything about the continued existence of the licence agreement.
 

pemerton

Legend
The writing of the draft is a bit ambiguous on this, IMO. Or perhaps equivocation.
  • OGL v1.1 licenses SRD 5.1 content ("Licensed Content"), and OGL v1.0a is no longer authorized;
  • What used to be described as 'Product Identity', and all SRDs previously published by WotC, are "Unlicensed Content";
  • Unlicensed Content may only be used by license of a separate agreement with WotC.
If 'authorized' means OGL v1.0a is totally revoked (and I'm not convinced, for reasons that have been described many times here by others), then I believe it could be read that 'open content' is still 'open content' licensed under OGL v1.0a -- a separate agreement. That is, 'Open Content' is 'Unlicensed Content' in view of OGL v1.1, but OGL v1.0a is in fact a separate agreement, if not revoked.
I think the text of the OGL v 1.1 makes it pretty clear that a party to that agreement accepts a variation to the terms of any prior licence they had with WotC in terms of the OGL v 1.0/1.0a, such that that prior licence is no longer valid as between the two parties. This is the meaning, it seems to me, of "is no longer authorized".
 

Dausuul

Legend
In the document I linked to, it is mentioned twice: in the Tremorsense entry, and in the spell components for Guards and Wards.

EDIT: Jerik already posted the above!

It's not an oversight, I don't think. The SRD, as I quoted upthread, expressly states that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License."
Under the OGL, the mention of product identity in open game content doesn't make it not PI.

The idea is that you can designate, say, a list of spell descriptions as open content, without having to a) carve out a bunch of exceptions for individual sentences or b) go through the spells with a fine-toothed comb excising all references to your product identity, such as the mention of an umber hulk in a components list.

Umber hulk is product identity.
 
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