OGL Legal Discussion of OGL 1.2


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Enrahim2

Adventurer
Can I suggest that those of us who do are not legal professionals aspire to limit our contributions, if any, to this thread? We wound up muddying the waters a lot in the other thread. Last post from me!
I agree to limit, but not stay away. I think one of the things that kept the thread running and relevant was silly suggestions and questions from laymen like me. It guess it might become less readable for the "general public" if it devolves too far into abstract legalese of little interest to the "common people"..
 

bmcdaniel

Adventurer
Four things strike me immediately:

1. As a technical matter, the license is modelled off Creative Commons licenses and is much better drafted and clearer than OGL 1.0a.


2. With respect to the de-authorization of OGL 1.0(a), the license itself is silent. However, there is a separate notice attached to OGL 1.2 which recites:

"NOTICE OF DEAUTHORIZATION OF OGL 1.0a. The Open Game License 1.0a is no longer an authorized license. This means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date). It does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content."

The placement outside the license can be seen as an admission by WOTC that, at best, it is not clear that they have the authority to de-authorize OGL 1.0(a). In any event, it is severed from the text of OGL 1.2 which means that an adopter of OGL 1.2 is not giving up any rights that they may have to continue to use OGL 1.0(a). It also means that, if litigated and WOTC loses on a claim that they can de-authorize, it would not cause the failure of the OGL 1.2 license.

However, the statement regarding de-authorization is regrettably vague. Consider these three questions:
(a) Publisher wants to re-print in 2024 a book first published in 2020 which incorporated SRD content under OGL 1.0(a)
(b) Publisher wants to re-print with updates in 2024 a book first published in 2020 which incorporated SRD content under OGL 1.0(a);
(c) New publisher wants in 2024 to create and print a book which incorporates materials from a book first published in 2020 which incorporated SRD content under OGL 1.0(a).

These two statements appear in the draft notice: [x] "you may not use [OGL 1.0(a) to publish SRD content after [the effective date]; and [y] "Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content."

Statement [x] seems to imply that all 3 scenarios are forbidden, while statement [y] seems to imply that all 3 scenarios are OK. (In particular, all 3 scenarios are OK under OGL 1.0(a) and statement [y] says that content remains licensed under OGL 1.0(a).) However, if either of these extreme positions were the result, it would be absurd. Either the attempted de-authorization has no effect (i.e. all 3 scenarios remain OK) or WOTC's reassurances are misleading, at best.


3. Section 7(b)(i) allows WOTC to terminate OGL 1.2 with a licensee without any notice or opportunity to cure or notice if the licensee challenges WOTC's ownership of intellectual property. This is better than requiring users agree to not bring an action challenging WOTC intellectual property (as in OGL 2). But users of OGL 1.2 that want to challenge WOTC's intellectual property are taking a risk that they will no longer be able to use WOTC material licensed under OGL 1.2.


4. Section 7(b)(i) allows WOTC to terminate OGL 1.2 with a licensee without any notice or opportunity to cure or notice if the licensee's works include material that is "harmful, discriminatory, illegal, obscene, or harassing," or the licensee "engage
in conduct that is harmful, discriminatory, illegal, obscene, or harassing." WOTC has the "sole right to decide what conduct or content is hateful," and the licensee agrees not to challenge any determination.

Because WOTC determines what is hateful in a manner that cannot be challenged. This effectively makes the license revocable.
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The law, including law relating to contracts and copyright is almost infinitely complex and nuanced. There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
 
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Ondath

Hero
So question for the lawyers (in a way that does not establish an attorney-client relationship obviously!):

1- Is the specific way they worded irrevocable "meaning that content licensed under this license can never be withdrawn from the license" different from the kind of irrevocability we have demanded for OGL v1.0a? Is the legal quagmire about "the offer being perpetual but WotC having the right to no longer make the offer" still a potential problem for the future of this license?
2- WotC says they're limiting the ways they can modify the license to parts "identifying the attribution required under Section 5 and the notice provision of Section 9(a)." Does this mean OGL v1.2 will be unmodifiable, unlike OGL v1.0a which included provisions for modification?
3- I believe there were provisions about being unable to retract content under OGC once it was released as OGC in OGL v1.0a. However, this license only includes SRD 5.1, so presumably SRD 3 and SRD 3.5 are no longer Licensed Content. Is this legally sound? Or will they have to release the old SRDs under OGL v1.2 as well?
 


bmcdaniel

Adventurer
One more point on Section 9(e): "Governing Law/Jurisdiction/Class Action Waiver. ... Each party hereto
irrevocably waives the right to participate in any class, collective, or other joint action with respect to
such a dispute."

This would prevent several small publishers from joining together to bring a joint action against WOTC, or even prevent a large publisher like Paizo from intervening in a case where WOTC brings an action against a small publisher.
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The law, including law relating to contracts and copyright is almost infinitely complex and nuanced. There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
 


MarkB

Legend
I'd appreciate some informed commentary on this part:

Severability. If any part of this license is held to be unenforceable or invalid for any reason, Wizards may declare the entire license void, either as between it and the party that obtained the ruling or in its entirety. Unless Wizards elects to do so, the balance of this license will be enforced as if that part which is unenforceable or invalid did not exist.​

Because to my layman's eyes, it reads as a way that WotC could leverage the cancellation of the entire OGL at some unspecified future point, simply by finding a spurious point of legality in their own license.
 

Ondath

Hero
I'd appreciate some informed commentary on this part:

Severability. If any part of this license is held to be unenforceable or invalid for any reason, Wizards may declare the entire license void, either as between it and the party that obtained the ruling or in its entirety. Unless Wizards elects to do so, the balance of this license will be enforced as if that part which is unenforceable or invalid did not exist.​

Because to my layman's eyes, it reads as a way that WotC could leverage the cancellation of the entire OGL at some unspecified future point, simply by finding a spurious point of legality in their own license.
I was reading the license alongside a lawyer friend (mind you, we live in a Civil Law country so he's not an expert on American trademark law!) and he said that's standard legal disclaimer that lawyers put to cover their behinds.
 


Ondath

Hero
And yet, they've muddled through without any such clause in the previous OGLs for twenty years.
Are you sure? I don't think that clause is too different from Section 14 OGL v1.0a:

14. Reformation: If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

This one says a similar thing "Unless Wizards elects to do so, the balance of this license will be enforced as if that part which is unenforceable or invalid did not exist.", but also covers them slightly more by saying "If you try to take this license to court and make it stop functioning the way we intended it to, we reserve the right to tableflip."

ENWorld has a policy where if you threaten any legal action against them, you lose the right to post anything to the forums. I don't see this clause as any different.
 

MarkB

Legend
Are you sure? I don't think that clause is too different from Section 14 OGL v1.0a:

14. Reformation: If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

This one says a similar thing "Unless Wizards elects to do so, the balance of this license will be enforced as if that part which is unenforceable or invalid did not exist.", but also covers them slightly more by saying "If you try to take this license to court and make it stop functioning the way we intended it to, we reserve the right to tableflip."

ENWorld has a policy where if you threaten any legal action against them, you lose the right to post anything to the forums. I don't see this clause as any different.
See, that clause is fine. It means that the licence can only be modified to the minimum extent required to make it functional.

It's the part where they can simply decide to dissolve the entire licence that's the problem. That would leave all OGL 3PPs with no legal framework within which to publish their content, and it could be done with zero notice.
 

Reynard

Legend
This kind of got lost in the other thread so I will ask again here: on the subject of de-authorization: let's say I make a Starfinder (released under OGL 1.0a, referencing the 3.5 SRD) adventure and put it up for sale, referencing Starfinder's Section 15. How can I be in violation of OGL 1.2 if I did not sign on to it? And how can I be in violation of OGL 1.0a if it is de-authorized? in other words, does WotC have any grounds to C&D me for a Starfinder (or Pathfinder or 13th age etc...) supplement?
 

overgeeked

B/X Known World
For me the big one is this:
No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.
To my non-lawyer eyes, this appears to say that WotC can, at any time, simply say that you said or did something they found "harmful, discriminatory, illegal, obscene, or harassing" and yank your license...and that you explicitly give up your right to fight back.
 

I notice that it is perpetual and irrevocable, where irrevocable is defined as

irrevocable (meaning that content licensed under this license can never be withdrawn from the license)

As far as I can see, there's nothing in there preventing the offer of license being withdrawn at any time, which combined with the assertion that they're deauthorising 1.0a, seems to imply that they'd be able to "turn the valve off" at their whim. (I'm not a lawyer)
 

Ondath

Hero
I notice that it is perpetual and irrevocable, where irrevocable is defined as



As far as I can see, there's nothing in there preventing the offer of license being withdrawn at any time, which combined with the assertion that they're deauthorising 1.0a, seems to imply that they'd be able to "turn the valve off" at their whim. (I'm not a lawyer)
Yeah, I noticed the same thing and I really hope the forum's lawyers weigh in on it! Especially @pemerton since he had noticed the "withdrawing the offer" shenanigans long before anyone else did!
 

Cadence

Legend
Supporter
[Edit: I have a ] Question for the lawyer types from [something brought up in] another thread:
I just realised: This license still can be understood by some as that they are free to publish things under OGL1.2 containing third party material published under 1.0a without attribution. After all, it could be seen as an authorized update to that OGL under section 9.

OGL 1.0a said...

"9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."

and this is an OGL. So would all of 1.0a be in 1.2 by default if someone wanted to use it there?
 
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Mercurius

Legend
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Especially that last sentence. Hmm.
 

Enrahim2

Adventurer
Question for the lawyer types from another thread:
I want to state that I did not intend this to be a lawyer question. My understanding was that they seem settled on that the only interpretations of not authorized involve not being able to invoke section 9 at all. Hence my point is more that someone not legally schooled like them might see this, and hence "by mistake" start building a business on 1.0a to oneD&D conversion for instance. However maybe it might still be an interesting legal question here: Would wizards then somehow could be considered at fault in misleading this person, and hence being an accomplice in the potential copyright infringement?
 

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