Legal Discussion of OGL 1.2

[S'mon]

This thread is to discuss legal issues around OGL 1.2. I hope to attract many of the legal professionals that discussed the OGL 1.0(a) and OGL 2.0.

Thinking about it, to me the only issue that really matters is that WoTC are still purporting that they can stop people using the OGL 1.0 to share Open Game Content, destroying the existing 3PP ecosystem. So (perhaps) unfortunately I am not all that interested in analysing the OGL 1.2 draft. It feels like a bit of a waste of time.

Edit: Justin Alexander covers it well in these tweets (click on the link for the most important ones).

 

[Matt Thomason]

Thinking about it, to me the only issue that really matters is that WoTC are still purporting that they can stop people using the OGL 1.0 to share Open Game Content, destroying the existing 3PP ecosystem. So (perhaps) unfortunately I am not all that interested in analysing the OGL 1.2 draft. It feels like a bit of a waste of time.

Edit: Justin Alexander covers it well in these tweets

While I'm in a similar boat, I'm also making sure I keep an eye out for any other 1.2 pitfalls in the event they do fix the OGC-between-3PPs issue. I'd hate to pull the trigger on 1.2 just to realise there's a whole different set of traps waiting behind that one (and at this point, it's pretty obvious there are)

 

[pemerton]

Thinking about it, to me the only issue that really matters is that WoTC are still purporting that they can stop people using the OGL 1.0 to share Open Game Content, destroying the existing 3PP ecosystem.

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

I mention this mostly because I've read multiple posts on some of these threads that seem to think the opposite.

 

[Matt Thomason]

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

I mention this mostly because I've read multiple posts on some of these threads that seem to think the opposite.

I agree they don't claim it directly. They are however making claims that put together with the text of 1.2 have an uncomfortable level of implication.

1) They claim they are deauthorizing 1.0a. They do not specifically state "instances of 1.0a between us and you", but 1.0a as a whole. Their implication, despite me understanding they have no actual power to do so, is that nobody can form any further 1.0a agreements between themselves.

2) 1.2 is unsuitable for use as a drop-in for 1.0a if you are licensing multiple works from multiple sources outside of WotC. It does not contain the mechanisms for that unless you are able to use the 1.2 between you and WotC alongside the 1.0a between you and a 3PP. The very text of 1.2 cannot be used to form a workable license where WotC is not the licensor, and we do not have appear to have permission to modify 1.2 in the way we can with 1.0a's Section 15, nor to even change the preamble stating the license is between WotC and $party. 1.2 also does not confer any offer from us to the downstream reader, nor does it grant any sublicensing ability whatsoever. Nor does it provide for identification of Open Game Content and Product Identity.

3) If 1.0a is deauthorized between $3PP and ourselves, we therefore need to fall back on the clause in 1.0a allowing the use of any authorized license, but as mentioned in 2) we can't use 1.2 for that purpose without making an extra copy of it and modifying that heavily, which we have not been granted permission to do and which would turn it into a version that is no longer authorized.

Now, my view here is that if I want to use 1.2 alongside some Open Game Content by Paizo, and license my own work onwards I need to do the following:
a) have a 1.2 agreement between WotC and myself for the SRD
b) have a seperate 1.0a agreement between Paizo and myself for the Paizo OGC.
c) either include my OGC contribution in b) or add a third license to the mix to allow readers to license my part.

While I am confident WotC can legally do nothing about the inclusion of b), in their own words that license is deauthorized. I need to hear clearly from them that they only mean for OGL licenses where they are the licensor, and not those where other parties are the licensor. Currently they seem to be ignoring any request whatsoever for clarification on this, despite it being likely to be the biggest concern of most 3PPs.

 

[S'mon]

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

Yes, I'm primarily concerned with the D&D-derived ecosystem, which I think is likely the substantial majority of OGL licenced content. Everything with a 'sliver of SRD' (per Alexander) in it, and everything which even might have a sliver of SRD in it.

 

[Iosue]

Even WotC doesn't claim - as far as I know - to be able to destroy the existing ecosystem in respect of OGC that does not reproduce or derive from WotC's OGC and hence doesn't depend, for avoidance of infringement, on a licence from WotC.

I mention this mostly because I've read multiple posts on some of these threads that seem to think the opposite.

IANAL, but that’s what I’ve been thinking. But I suppose it’s a sauce for the goose kind of thing? Maybe WotC doesn’t care about non-WotC OGC, but the ostensible de-authorization opens users of that OGC to the threat of legal action from the respective creators of it? It seems highly unlikely, but perhaps the uncertainty alone is enough to destabilize the market.

 

[pemerton]

I agree they don't claim it directly. They are however making claims that put together with the text of 1.2 have an uncomfortable level of implication.

1) They claim they are deauthorizing 1.0a. They do not specifically state "instances of 1.0a between us and you", but 1.0a as a whole. Their implication, despite me understanding they have no actual power to do so, is that nobody can form any further 1.0a agreements between themselves.

I don't see that there is any such implication. WotC has not and does not claim to be able to control the terms on which other parties enter into contracts with one another.

You've probably read my posts that say people are reading the OGL as a statute. This is another example: people are treating WotC as a legislator who can govern contracts to which it is not a party by creating laws of general force. But WotC cannot do that, and has never claimed to do so. All its statements about the OGL v 1.0a have been about its offers to license and its licence agreements.

Frankly, I don't think WotC gives a toss about what Mongoose does with its game. Why would WotC care whether that ecosystem is licensed under the OGL or ORC or CC or any other licence?

If 1.0a is deauthorized between $3PP and ourselves, we therefore need to fall back on the clause in 1.0a allowing the use of any authorized license

I don't see how this can happen. WotC has never claimed this power as best I can see, as per just above in this post.

1.2 is unsuitable for use as a drop-in for 1.0a if you are licensing multiple works from multiple sources outside of WotC. It does not contain the mechanisms for that unless you are able to use the 1.2 between you and WotC alongside the 1.0a between you and a 3PP. The very text of 1.2 cannot be used to form a workable license where WotC is not the licensor, and we do not have appear to have permission to modify 1.2 in the way we can with 1.0a's Section 15, nor to even change the preamble stating the license is between WotC and $party. 1.2 also does not confer any offer from us to the downstream reader, nor does it grant any sublicensing ability whatsoever. Nor does it provide for identification of Open Game Content and Product Identity.

OGL v 1.2 isn't a viral licence in any form - agreed. (I posted an analysis of its non-viral character in one of the threads, and I think I pointed you to it.)

On the other hand, I don't see any obvious obstacle to publishing a work that includes WotC licensed content under OGL v 1.2 together with OGC that is licensed under the OGL v 1.0a and is not in any fashion connected to WotC's copyrighted OGC. (I wouldn't want to try and include any WotC-connected OGC - that would probably be a breach of the terms of OGL v 1.2.)

If you want to somehow combine or integrate the WotC licensed content and the other OGC it becomes trickier, depending on the details I would say.

Now, my view here is that if I want to use 1.2 alongside some Open Game Content by Paizo, and license my own work onwards I need to do the following:
a) have a 1.2 agreement between WotC and myself for the SRD
b) have a seperate 1.0a agreement between Paizo and myself for the Paizo OGC.
c) either include my OGC contribution in b) or add a third license to the mix to allow readers to license my part.

If your OGC includes content that means that distributing it might violate WotC's copyright, then as I posted above it becomes trickier. The details start to matter.

While I am confident WotC can legally do nothing about the inclusion of b), in their own words that license is deauthorized. I need to hear clearly from them that they only mean for OGL licenses where they are the licensor, and not those where other parties are the licensor. Currently they seem to be ignoring any request whatsoever for clarification on this, despite it being likely to be the biggest concern of most 3PPs.

Here's what seems to me to be the core of the notice of deauthorisation:

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 seems pretty clear to me. They are talking about the licensing of their copyrighted work.

 

[pemerton]

Maybe WotC doesn’t care about non-WotC OGC, but the ostensible de-authorization opens users of that OGC to the threat of legal action from the respective creators of it?

On what basis?

I'm not seeing it.

perhaps the uncertainty alone is enough to destabilize the market.

The uncertainty seems to me to be the result of misinformation being spread by people who don't understand how private legal agreements work. I know that's a fairly blunt remark. But I keep reading posts asserting with dogmatic confidence propositions that are either obviously legally wrong, or at best legally uncertain.

The most common underpinning of the misinformation is the assumption that WotC is a legislator. It's not.

 

[Matt Thomason]

If you want to somehow combine or integrate the WotC licensed content and the other OGC it becomes trickier, depending on the details I would say.

If your OGC includes content that means that distributing it might violate WotC's copyright, then as I posted above it becomes trickier. The details start to matter.

Here's what seems to me to be the core of the notice of deauthorisation:

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 seems pretty clear to me. They are talking about the licensing of their copyrighted work.

Okay, I'd missed that "to publish SRD content". It'd be better if they said "to publish OUR SRD content", but reading it that way does carry the implication they are restricting that comment to their own content.

I agree with you 100% that they are unable to affect agreements between other parties. My worry was that they might try anyway. At this point it's hard for me to make an assumption WotC will continue to operate in good faith regarding the use of 1.0a.

But overall - you agree with my assessment that in order to combine SRD content licensed under 1.2 and non-SRD content licensed under 1.0a I will need to license those in seperate agreements with the relevant parties? The SRD under 1.2, and the non-SRD non-WotC content under the still valid between me and $publisher no matter what WotC say 1.0a?

(I wouldn't want to try and include any WotC-connected OGC - that would probably be a breach of the terms of OGL v 1.2.)

Now THIS sentence worries me
Would you consider a class by a 3PP that depends upon SRD mechanics "WotC-Connected OGC", or do you specifically mean WotC-OWNED OGC?

 

[Matt Thomason]

The most common underpinning of the misinformation is the assumption that WotC is a legislator. It's not.

I think the issue here is that we're afraid they may try and act like one anyway

I'm mostly happy that I have this OGL 1.2/1.0a mix nailed. My main concern is that WotC will not agree and will try and sue anyway, with the most likely result being me being unable to stand up to them and fight for my legal rights. It would be better for the entire 3PP community if WotC issue clear guidelines on how they expect 1.2 and 1.0a to be used together when there is also third-party 1.0a OGC in the mix, simply to ensure good faith between parties and no accidental misunderstandings.

 

[pemerton]

I agree with you 100% that they are unable to affect agreements between other parties. My worry was that they might try anyway.

I don't know what trying would look like here.

At this point it's hard for me to make an assumption WotC will continue to operate in good faith regarding the use of 1.0a.

I don't know what it means for WotC to operate in good faith in relation to X's contract with Y to which WotC is not a party, and which does not implicate WotC's copyrighted works.

If WotC try to insist on asserting their copyright in the text of the OGL that gets a bit trickier. For the reasons I (and some others) have posted seems like a weak claim, and to me not one they would bother making. But even if they did, it wouldn't bring any contracts to an end. So what would then be needed would be a mechanism within that ecosystem for parties to mutually vary the terms of their licence so as to no longer require one another to reproduce the text of the OGL.

you agree with my assessment that in order to combine SRD content under licensed under 1.2 and non-SRD content licensed I will need to license those in seperate agreements with the relevant parties? The SRD under 1.2, and the non-SRD non-WotC content under the still valid between me and $publisher no matter what WotC say 1.0a?

Yes. I think that's clear. OGL v 1.2 section 5(b) expressly says as much.

It's some sort of blending of content - eg you want to publish a D&D sub-class that uses a PF2 ability - that becomes tricky. Because in this case it's not clear that you can honour your OGL v 1.0a obligations to Paizo, in respect of that content (which would be OGC in the terms of your licence with Paizo) without breaching your OGL v 1.2 obligations to WotC.

 

[Snarf Zagyg]

I think the issue here is that we're afraid they may try and act like one anyway

I'm mostly happy that I have this OGL 1.2/1.0a mix nailed. My main concern is that WotC will not agree and will try and sue anyway, with the most likely result being me being unable to stand up to them and fight for my legal rights. It would be better for the entire 3PP community if WotC issue clear guidelines on how they expect 1.2 and 1.0a to be used together when there is also third-party 1.0a OGC in the mix, simply to ensure good faith between parties and no accidental misunderstandings.

On the one hand, all of this is going very quickly (especially in terms of legal documents with far-reaching effect), so I would expect that they will continue to evolve and explain as they catch their breath.

On the other hand ... I mean ... they did explain the OGL 1.0a before .... with a FAQ .... and, um. Yeah. Given that, I'm not sure that any explainer is going to help much, unfortunately.

 

[pemerton]

Would you consider a class by a 3PP that depends upon SRD mechanics "WotC-Connected OGC", or do you specifically mean WotC-OWNED OGC?

Under the OGL v 1.2 you accept that there is a category of unlicensed content. If your work contains unlicensed content it doesn't get the benefit of the OGL v 1.2, and so would infringe WotC's copyright in respect of that content.

If you work contains content in which you own the copyright, but which is derivative of unlicensed content, I think the better view seems to be that your work is not licensed - because the licence only extends to using and modifying licensed content. So you might be liable to WotC for infringement of their copyright. And I don't see that you could plead a v 1.0/1.0a licence in your defence, given you've accepted that all the WotC content it covered is (now, by force of contract) unlicensed.

I think the issue here is that we're afraid they may try and act like one anyway

Again, I don't know what this even looks like. WotC have never purported to legislate. They purport to be exercising private law powers, around the terms on which they license their IP.

I'm mostly happy that I have this OGL 1.2/1.0a mix nailed. My main concern is that WotC will not agree and will try and sue anyway, with the most likely result being me being unable to stand up to them and fight for my legal rights. It would be better for the entire 3PP community if WotC issue clear guidelines on how they expect 1.2 and 1.0a to be used together when there is also third-party 1.0a OGC in the mix, simply to ensure good faith between parties and no accidental misunderstandings.

In section 5(b) they say

You may permit the use of your Content on any terms you want. However, if any license you offer to your Licensed Work is different from the terms of this license, you must include in the Licensed Work the attribution for Our Licensed Content found in the preamble to the applicable SRD, and make clear that Our Licensed Content included in your Licensed Work is made available on the terms of this license.​

So haven't they already answered your question in the express terms of the licence.

 

[rcade]

I'd like to hear what lawyers think about the Severability Clause in OGL 1.2. As an author I've signed a lot of contracts that had a Severability Clause. I've never seen one that also says "if any of this is held to be unenforceable we can choose to cancel the entire thing." That's the opposite of severability!

 

[Matt Thomason]

In section 5(b) they say

You may permit the use of your Content on any terms you want. However, if any license you offer to your Licensed Work is different from the terms of this license, you must include in the Licensed Work the attribution for Our Licensed Content found in the preamble to the applicable SRD, and make clear that Our Licensed Content included in your Licensed Work is made available on the terms of this license.​

So haven't they already answered your question in the express terms of the licence.

I believe I know how to do it (see example above).

I would prefer a clear statement from them with an example of how they understand the license appendix to a work will look when it combines SRD content under 1.2 with 3PP content released under 1.0a, and make it clear they are absolutely fine with us continuing to print their copyrighted, "deauthorized" 1.0a license in a 1.2-licensed book with respect to content we are reusing from non-WotC sources.

I want to ensure I am not walking into a carefully-laid trap they have engineered to destroy 3PPs. Understand that I'm currently treating them as a hostile entity, willing to exploit loopholes to push out the competition - because it appears to me that's exactly how they are behaving.

 

[S'mon]

I'd like to hear what lawyers think about the Severability Clause in OGL 1.2. As an author I've signed a lot of contracts that had a Severability Clause. I've never seen one that also says "if any of this is held to be unenforceable we can choose to cancel the entire thing." That's the opposite of severability!

100%! It is the opposite of a normal severability clause.

 

[Matt Thomason]

Again, I don't know what this even looks like. WotC have never purported to legislate. They purport to be exercising private law powers, around the terms on which they license their IP.

Mostly, it's a worry that they will attempt to exercise those private law powers over things that we actually do have a legal right to do. In the past, they have not been openly hostile, have been very cooperative with 3PPs, and 20+ years of them doing nothing hostile in relation to OGL 1.0a led to a lot of trust, which went down the drain over the past weeks and has placed 3PPs in a very uncomfortable position.

 

[Matt Thomason]

On the one hand, all of this is going very quickly (especially in terms of legal documents with far-reaching effect), so I would expect that they will continue to evolve and explain as they catch their breath.

I really hope so.

On the other hand ... I mean ... they did explain the OGL 1.0a before .... with a FAQ .... and, um. Yeah. Given that, I'm not sure that any explainer is going to help much, unfortunately.

It is a huge shame there is no ogf-l equivalent this time around for 3PPs to make their voices heard above the general noise and to raise the specific concerns they have, with a helpful WotC representative on hand to answer questions.

 

[rcade]

If WotC try to insist on asserting their copyright in the text of the OGL that gets a bit trickier. For the reasons I (and some others) have posted seems like a weak claim, and to me not one they would bother making. But even if they did, it wouldn't bring any contracts to an end. So what would then be needed would be a mechanism within that ecosystem for parties to mutually vary the terms of their licence so as to no longer require one another to reproduce the text of the OGL.

If Hasbro forbid the reproduction of OGL 1.0a and publishers started putting "This work is licensed under the terms of Open Game License 1.0a (not reprinted here) and has the following Section 15 and identification of Open Game Content and Product Identity," the only parties with standing to call it a breach of the license are the ones in Section 15. But Hasbro isn't going to tell a publisher "You are violating the OGL by not including the contract we told you not to include." Or at least they'd be on such a flimsy limb that an exasperated judge might tell them "if you want publishers to reprint the license stop telling them they can't do it."

 

[kenada]

If Hasbro forbid the reproduction of OGL 1.0a and publishers started putting "This work is licensed under the terms of Open Game License 1.0a (not reprinted here) and has the following Section 15 and identification of Open Game Content and Product Identity," the only parties with standing to call it a breach of the license are the ones in Section 15. But Hasbro isn't going to tell a publisher "You are violating the OGL by not including the contract we told you not to include." Or at least they'd be on such a flimsy limb that an exasperated judge might tell them "if you want publishers to reprint the license stop telling them they can't do it."

The OGL is supposed to be listed in your section 15 declaration, so wouldn’t that give Hasbro standing in this situation?