Legal Discussion of OGL 1.2

[Cadence]

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?

Sorry, I should have phrased that as "I have a question based on a post in another thread"!

 

[OB1]

Question for the lawyers - If a company uses OGL 1.0a and does NOT include any WotC SRD content in it, would WotC have any grounds to sue?

 

[TerraDave]

Well at least it looks like a license this time.

 

[Steel_Wind]

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?

The word "accomplice" suggests an intention to be a party to an offense.

No. WotC is pursuing an arguable position concerning matters of contract and licensing. The criminal law has no place in this discussion. At all.

 

[Steel_Wind]

Question for the lawyers - If a company uses OGL 1.0a and does NOT include any WotC SRD content in it, would WotC have any grounds to sue?

You can sue on the thinnest of bases under the common law.

So the question is not a reasonable one, as "grounds" is a wide open term.

Could WotC sue you for some relief for purporting to use 1.0a? Sure.

Problem: this is theoretical speculation now in a vacuum of facts. It is not helpful speculation - as it doesn't really address a concern or answer a specific question in context.

 

[Uni-the-Unicorn!]

Where can a find OGL 1.2?

It is on DnD Beyond front page or you can get to it from the home page of EnWorld.

 

[Snarf Zagyg]

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.

I believe this to be an inaccurate statement of the law regarding intervention

 

[Jolly Ruby]

(IANAL) What does it mean the "notice of deauthorization of OGL 1.0a" is in the new "Introduction to System Reference Document 5.1" and not in the OGL 1.2 draft? Is the OGL 1.0a deauthorized only for the SRD 5.1? What are they trying to do with this?

 

[Greg Benage]

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?

Bumping this question for an answer!

 

[TolkienThePiss]

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.

Well that sentence is a humdinger - who trusts Hasbro/WotC to exercise this in good faith?

I think we need some Zaporozhian Cossacks up in here to draft a response.

 

[!DWolf]

I am not a lawyer but reading this as a lay person, this is what I would be afraid of:

Suppose Hasbro wants to raise some quick cash, so it turns to the OGl 1.2.

1. They use section 7a to change the notice provision to the notice, registration, and royalty provision (headings are only used for reference according to 9f). You now have to register and pay 5% royalties.
2. Let’s say that you don’t like this and decide to fight in court. Well you’re on your own thanks to section 9e. Think you can go up against a massive company like Hasbro? Is the legal cost worth 5% of revenues?
3. Let’s say you scrap together the funds. Well, Hasbro comes up to you and goes: maybe you win and maybe you lose but we are going to screw you either way because if we win we will crank up the royalties to 200%, but if we lose we will use section 9d to stop the entire license and then sue you to stop you from selling products utilizing our IP. Is that really worth 5%?
4. And if that doesn’t work, Hasbro has determined that depicting people being physically active is supporting white supremacy (and they can support this assertion with some outraged videos on TilTok and a couple of articles from major news sources) and are terminating your licenses under 6f.

Edit: changed example in last item to make it something more realistic.

 

[OB1]

You can sue in the thinnest of bases under the common law.

So the question is not a reasonable one, as "grounds" is a wide open term.

Could WotC sue you for some relief for purporting to use 1.0a? Sure.

Problem: this is theoretical speculation now in a vacuum of facts. It is not helpful speculation - as it doesn't really address a concern or answer a specific question in context.

Sorry, probably wasn't clear enough in what I was asking.

The purpose of the OGL/SRD is to protect a creator from a suit by a content creator that you stole their property. You put the license in, reference the relevant SRD, and then if they try to sue you for including the content, you show the judge the license giving you permission to have that content.

So if a company using the OGL isn't using Wizards SRD content anyhow, what would Wizards sue over?

 

[Steel_Wind]

Ignore that minor stuff folks: pay attention to what WotC is doing and why. Why are they releasing the 5.1 SRD under 1.2 -- when they already did this under OGL 1.0a?

Pay attention:

Their VTT Tabletop Policy is at page 6. Here is the reason we are having this discussion in the first place. It's because of Foundry VTT and WotC's own planned 3d VTT, which they intend to sell at a monthly subscription rate, instead of, you know, FREE:

So we have:

Now, I know that most of you aren't familiar with what Foundry VTT can do. I'd have to make a video of my own game content that uses many of these features which are supported via add-on modules to Foundry VTT (and which are, in turn, supported by artists providing animations monthly via Patreon).

When my PCs play in one of my Foundry sessions? Their characters are represented by top-down sprites. When those characters make an attack? There is a corresponding animation that is triggered, depending on the weapon they use, and if its hits or misses and a sound FX plays to match the strike, miss or what have you. When my PCs or bad guys cast spells, or a dragon breathes? There is usually an animation which plays, an accompany .ogg sound effect which is triggered -- and COOL STUFF HAPPENS on the screen.

This eye/ear candy is what WotC wants to sell with its forthcoming 3d VTT, to DMs and players alike, for a monthly subscription to everyone at the table. They don't care (much) about Roll20 and FG - and they control those under license anyway. Those VTTs are just not that capable -- they are not an alternative good to the VTT that WotC plans to sell.

But Foundry VTT IS capable of those things. It's capable of them RIGHT NOW. There is a 3d suite of add-on modules sold via a patreon by theripper93. It supports 3d in Foundry. There are similarly, a suite of animations for Foundry VTT by a pair of French brothers, Jules and Ben, that have amassed quite a collection of animations over the past 2 years. The magic missile which follows and hits the target? That's Foundry's Spell animations. It does a whole crap-ton more than that, too.

They don't want you to have that eye candy unless you buy it from them. THAT is why we are here, it's why we've been here all along. They don't want people to have that option to play with that eye candy for FREE, they want you to have to pay a monthly subscription for that.

It's akin to WotC complaining that my minis are painted too well, my 3d terrain on the tabletop is too slick and immersive, my maps are too good, my music and sound FXs are too good, my weather, fog, and lighting effects in Rime of the Frostmaiden are too good. It's all too good. Only they should be able to make something that looks that good - so they can charge me for it (and lots of other people, too).

At its heart, this is about Foundry VTT, because it's too good -- and trying to stop a fork of 5e so that WotC does not end up competing with a version of D&D all over again. They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

 

[TerraDave]

Ignore that minor stuff folks: pay attention to what WotC is doing and why. Why are they releasing the 5.1 SRD under 1.2 -- when they already did this under OGL 1.0a?

Pay attention:

View attachment 273139

Their VTT Tabletop Policy is at page 6. Here is the reason we are having this discussion in the first place. It's because of Foundry VTT and WotC's own planned 3d VTT, which they intend to sell at a monthly subscription rate, instead of, you know, FREE:

So we have: View attachment 273144

Now, I know that most of you aren't familiar with what Foundry VTT can do. I'd have to make a video of my own game content that uses many of these features which are supported via add-on modules to Foundry VTT (and which are, in turn, supported by artists providing animations monthly via Patreon).

When my PCs play in one of my Foundry sessions? Their characters are represented by top-down sprites. When those characters make an attack? There is a corresponding animation that is triggered, depending on the weapon they use, and if its hits or misses and a sound FX plays to match the strike, miss or what have you. When my PCs or bad guys cast spells, or a dragon breathes? There is usually an animation which plays, an accompany video sound effect -- and COOL STUFF HAPPENS on the screen.

This eye candy is what WotC wants to sell with its forthcoming 3d VTT that it wants to sell to DMs and players alike, for a monthly subscription to everyone at the table. They don't care (much) about Roll20 and FG. Those VTTs are just not that capable -- they are not an alternative good to the VTT that WotC plans to sell.
But Foundry VTT IS capable of those things. It's capable of them RIGHT NOW. There is a 3d suite of add-on modules sold via a patreon by theripper93. It supports 3d in Foundry. There are similarly, a suite of animations for Foundry VTT by a pair of French brother, Jules and Ben, that have amassed quite a collection of animations over the past 2 years. The magic missile which follows and hits the target? That's Foundry's Spell animations. It does a whole crap-ton more than that, too.

They don't want you to have that unless you buy it from them. THAT is why we are here, it's why we've been here all along. They don't want people to have that option to play with that eye candy for FREE, they want you to have to pay a monthly subscription for that.

It's akin to WotC complaining that my minis are painted too well, my 3d terrain on the tabletop is too slick and immersive. It's too good. Only they should be able to make something that good.

At its heart, this is about Foundry VTT, because it's too good -- and trying to stop a fork of 5e so that WotC does not end up competing with a version of D&D all over again. They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

This probably deserves its own thread, as we get closer to heart of darkness in this matter.

I don't actually think this is about the Foundry specifically--as that remains a very niche VTT. But yes, it is absolutely about things like it and video games and WotC's ability to control digital content.

 

[Fendulum]

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 "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 seems to imply that all 3 scenarios are OK. (In particular, all 3 scenarios are OK under OGL 1.0(a) and statement 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.

I think the right way to read this is that it covers (a) but not (b), and (c) turns on a separate issue. What's licensed is the previous work (the "previously published content"). An updated version isn't licensed because it has new content. A new product that uses no WOTC material may or may not be licensed depending on the impact of the deauthorization on the OGL licenses running from third-party publishers relying on OGL 1.0a.

 

[Steel_Wind]

This probably deserves its own thread, as we get closer to heart of darkness in this matter.

I don't actually think this is about the Foundry specifically--as that remains a very niche VTT. But yes, it is absolutely about things like it and video games and WotC's ability to control digital content.

I absolutely do think it is Foundry VTT. Foundry has already surpassed FG and Roll20 has been bleeding customers to it since spring 2020. Paizo now licenses directly for it. WotC won't. It conflicts with their plans.

Foundry VTT is the #2 VTT software in the marketplace -- and it's not getting smaller.

This is about money - and perceived commercial threats to WotC's business plan to make money via a 3d VTT which is, at its heart, about sophisticated EYE CANDY. They don't want a free alternative (in the sense they don't make subscription money off of it) to their forthcoming product which is an alternative good that can actually compete.

 

[bmcdaniel]

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?

As fairly extensively described in the thread OGL - Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion., the legal quagmire on this is based on a misunderstanding. Licenses are not revocable or irrevocable based on magic words; instead they are revocable or not based on the expressed intentions of the parties to the agreement in which the license is embedded (unless there is no agreement, in which case the license is generally revocable).

OGL 1.2 is a great example. It states that it is irrevocable, but also includes a termination provision in Section 7 that makes the license "not irrevocable when viewed as a whole." One can take different views about how easy it would be for WOTC to revoke the license; my own view is that Section 7(b)(i) would make it quite easy for WOTC to revoke the license.

------
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.

 

[bmcdaniel]

I believe this to be an inaccurate statement of the law regarding intervention

Not my area of law, so I have only weakly held views, but I'm curious for the basis of your belief. Is your belief that the law prohibits restrictions on parties intervening in cases? or that the agreement, as properly interpreted, does not apply to interventions?




------
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.

 

[Citizen Mane]

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.

I'm not a lawyer, but I do write and negotiate biomedical and clinical research contracts for a living. And it's absolutely standard to include severability language. The contracts that I work with almost universally say something along the lines of the following: if any part of the contract is found to be invalid or unenforceable, then that provision shall be null and void and the rest of the contract shall continue to be valid and enforceable. My assumption's always been that this is because there's a lot at stake (cancer drugs!), and no one wants to scuttle the entire contract, stopping a large chunk of a clinical trial, because of one unenforceable clause (especially if it's not material to the project at large).

If it weren't for the current imbroglio, I'd find their choice of language uninteresting, but, given that the CC BY 4.0's severability language is in line with my paraphrase above, that the financial risk and liability involved in TTRPG development is rather minimal compared to what I see in my job*, and waives hand everything else, it doesn't make me feel better about how they might behave in the future towards 3PP. Maybe that's just a long way of saying, like, it's certainly a choice to take that stance.

* Although this could be a failure of imagination on my part.

 

[Snarf Zagyg]

Not my area of law, so I have only weakly held views, but I'm curious for the basis of your belief. Is your belief that the law prohibits restrictions on parties intervening in cases? or that the agreement, as properly interpreted, does not apply to interventions?
.

The second.

(To be clear, there are issues with the first as well, but that‘s neither here nor there with this standard clause.)