OGL Legal Discussion of OGL 1.2

rcade

Hero
The OGL is supposed to be listed in your section 15 declaration, so wouldn’t that give Hasbro standing in this situation?
Hasbro might, but it would be arguing "nobody can copy our license" at the same time it argues "everybody must copy our license."

If a court had to rule on this, it might use the Reformation clause as justification to allow "You MUST include a copy of this License with every copy of the Open Game Content You Distribute" to be changed to "You MUST include a declaration that you are following Open Game License 1.0a with every copy of the Open Game Content You Distribute." Or it could tell Hasbro that because it offered this open license for 23 years and many works continue to be legally publishable under its terms, Hasbro must allow its text to be included in licensed works.
 

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pemerton

Legend
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.
I think not quite the opposite! I mean, it does contain the standard severability wording. It just also confers on WotC a power to terminate the whole thing rather than proceed subject to the severance.

If I was a prospective licensee I would be fairly conscious of the variety of powers this licence gives to the other party.
 

pemerton

Legend
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."
WotC/Hasbro wouldn't have any standing that I can see - they're not a party to a contract between (say) you and me.

So I think your suggestion is one potential way around the issue!
 

pemerton

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

We're talking about a licence agreement between (say) you and me, where we have agreed to licence our content to one another on terms set out in the OGL. So we've promised one another to publish, under the specified conditions, text that is copyright WotC.

If we decide to instead use @rcade's solution, we are in breach of our promises to one another but the breach seems pretty trivial, and (assuming we both want to preserve our particular OGC ecosystem) neither of us is going to complain and each of us could even make a statement that we waive our right to have the OGL published in full.

(There are complexities around section 13 - does our breach terminate all the licences if we don't cure? - but it should be possible to issue some sort of properly drafted waiver to avoid that result for this particular breach.)

However exactly we do it, I don't see how WotC has any interest in the matter.
 

However exactly we do it, I don't see how WotC has any interest in the matter.
I could see some hypothetical scenario where WotC could argue that they haven't given anyone permission to use the license text itself in such a case. The "THIS LICENSE IS APPROVED FOR GENERAL USE" language is from the Open Gaming Foundation (which doesn't legally exist, it's an alias of Ryan Dancey) and not straight from the horse's mouth, and according to what you've been saying here... well, it would be a gratuitous offer that could be revoked at-will anyway, wouldn't it?
 

bmcdaniel

Adventurer
There is no straightforward way for a private party to bind themselves in respect of a gratuitous offer made to all the world. That's the nature of the common law of contract.

As with every legal principle there are nuances etc. I don't immediately see any nuance here.
Not actually correct. There is a legal instrument called a Deed Poll which a private person can use to bind themselves to the entire world. I use them frequently in international agreements where countries only weakly support 3rd party beneficiaries. Originally arose out of real property but also usable in other contexts. Not very much used in the US, however.
 

pemerton

Legend
Not actually correct. There is a legal instrument called a Deed Poll which a private person can use to bind themselves to the entire world. I use them frequently in international agreements where countries only weakly support 3rd party beneficiaries. Originally arose out of real property but also usable in other contexts. Not very much used in the US, however.
Fair enough. That's the sort of thing I was putting under nuance. I don't think WotC is planning to use that sort of device.
 

mamba

Hero
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?
yes, at least according to some, they can still withdraw the offer altogether, to prevent this they have to make it fully irrevocable, not sure this is the legal term, but it is the one used by that lawyer
 

mamba

Hero
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.
it might be, but I do somehow not trust WotC with that, not sure why…

Is there a less ‘abusable’ common term that can be used instead?
 

mamba

Hero
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.
I have two solutions

1) remove the VTT policy altogether
2) have a clause that restricts WotC’s VTT to the terms of that policy in the OGL
 

FrogReaver

As long as i get to be the frog
Why?

We're talking about a licence agreement between (say) you and me, where we have agreed to licence our content to one another on terms set out in the OGL. So we've promised one another to publish, under the specified conditions, text that is copyright WotC.

If we decide to instead use @rcade's solution, we are in breach of our promises to one another but the breach seems pretty trivial, and (assuming we both want to preserve our particular OGC ecosystem) neither of us is going to complain and each of us could even make a statement that we waive our right to have the OGL published in full.

(There are complexities around section 13 - does our breach terminate all the licences if we don't cure? - but it should be possible to issue some sort of properly drafted waiver to avoid that result for this particular breach.)

However exactly we do it, I don't see how WotC has any interest in the matter.
I would think because they are a contributor of OGC and it’s the contributors that grant the license that they would be included and have interest.
 

2) have a clause that restricts WotC’s VTT to the terms of that policy in the OGL
I like your chutzpah. If they're trying to illegally gimp the competition, let's just gimp all of 'em instead. No fancy VTT stuff for anyone. Fantasy TTRPGs should be played in the real world anyway.
 

pogre

Legend
Not actually correct. There is a legal instrument called a Deed Poll which a private person can use to bind themselves to the entire world. I use them frequently in international agreements where countries only weakly support 3rd party beneficiaries. Originally arose out of real property but also usable in other contexts. Not very much used in the US, however.
I am a lawyer and I learned something today! What a rabbit-hole you just sent me down!
 

Enrahim2

Adventurer
Actually - might it be that wizards refraining from clarifying their legal position, and claimed effect of the "no longer authorized" might actually be a benefit to several parties?

By bringing a highly ambigous claim with weak legal basis they create a situation where actual legal action seem very risky for both sides. If it go to court it really seem like a toss of coin what a decission might be in any particular circumstances given the disagrement between the law people here. Within this volatile legal situation Wizards might hence using non-legalese to stake out certain lines in the sand that it do not want anyone to step over. This include use of Owlbears under 1.0a, any hateful content associated with SRD content in any form, or corporate exploitation of what they consider their IP.

The understanding they might hope for is that as long as noone is clearly crossing these lines, they won't consider any legal actions.

However being vague about these lines can benefit both WotC and some of those that want to use 1.0a in the following way: For WotC, not being spesific about their interpretation might enable them to tailor the content of their claims to benefit them if they actually find they might have to go the legal way. On the other hand low stakes creators can reasonably safely continue using ogc as long as it is not obvious srd use - as they could make a sufficiently strong claim about ambiguity that it would be too costly for wizards to go after such small fish, as they wouldnt be able to slam-dunk the court case, and would have too much to loose to try to bring it to court without significant legal spending.

Might it be that they haven't actually mapped out concrete legal stance yet, but rather have identified this as a legal grey area where they expect they get what they want? That they essentially are wanting to map out a practical boundary of what people can do or not, rather than considering where the actual legal boundaries a court might draw up might go? In that case I guess it make very much sense that wizards try to be as vague as possible with actual statements, but might rather aim at using C&D on clearly problematic cases to identify where it considers it's boundaries?

This is of course very speculative from my side. I thought it might belong in this thread as i would guess those with actual law experience might know if this is a type of "legal strategy" that might be found in the wild, or if such an approach is deeply flawed as there is some well known reason such an aproach would for instance put wizards on a significantly worse legal footing.
 

pogre

Legend
Actually - might it be that wizards refraining from clarifying their legal position, and claimed effect of the "no longer authorized" might actually be a benefit to several parties?

By bringing a highly ambigous claim with weak legal basis they create a situation where actual legal action seem very risky for both sides. If it go to court it really seem like a toss of coin what a decission might be in any particular circumstances given the disagrement between the law people here. Within this volatile legal situation Wizards might hence using non-legalese to stake out certain lines in the sand that it do not want anyone to step over. This include use of Owlbears under 1.0a, any hateful content associated with SRD content in any form, or corporate exploitation of what they consider their IP.

The understanding they might hope for is that as long as noone is clearly crossing these lines, they won't consider any legal actions.

However being vague about these lines can benefit both WotC and some of those that want to use 1.0a in the following way: For WotC, not being spesific about their interpretation might enable them to tailor the content of their claims to benefit them if they actually find they might have to go the legal way. On the other hand low stakes creators can reasonably safely continue using ogc as long as it is not obvious srd use - as they could make a sufficiently strong claim about ambiguity that it would be too costly for wizards to go after such small fish, as they wouldnt be able to slam-dunk the court case, and would have too much to loose to try to bring it to court without significant legal spending.

Might it be that they haven't actually mapped out concrete legal stance yet, but rather have identified this as a legal grey area where they expect they get what they want? That they essentially are wanting to map out a practical boundary of what people can do or not, rather than considering where the actual legal boundaries a court might draw up might go? In that case I guess it make very much sense that wizards try to be as vague as possible with actual statements, but might rather aim at using C&D on clearly problematic cases to identify where it considers it's boundaries?

This is of course very speculative from my side. I thought it might belong in this thread as i would guess those with actual law experience might know if this is a type of "legal strategy" that might be found in the wild, or if such an approach is deeply flawed as there is some well known reason such an aproach would for instance put wizards on a significantly worse legal footing.
I do not know about a "legal" strategy, but I posited a similar theory to some folks recently. Follows similar lines to your thinking, but goes like this:

1. Hasbro decided the OGL was problematic and associated projects with their brand they did not want associated with D&D. Hasbro also rejected the all in one tent motivation behind the original OGL.

2. They invent the idea of de-authorizing the OGL. I'm on the side that say they cannot do that, but it may not matter for reasons given below.

3. The very act of claiming they are de-authorizing the OGL creates a muddy situation where 3rd party publishers are caught in a quagmire of "what ifs" and potential legal minefields.

4. 3rd party publishers build their own stuff (ORC) and leave the realm of D&D "compatibility" and do their own thing.

5. Now D&D and its material are completely controlled by Hasbro.

Hasbro continues to build its brand in a way they see fit and do not have to worry about others directly tainting the D&D brand or associated I.P.

In other words, without winning a lawsuit, Hasbro gets exactly what they want.

They just did not see this massive backlash coming. However, if they weather it and it dies down - it might be the right move from their perspective.

All of the above is 100% conjecture on my part. It is entirely possible it was not anything close to a "plan" and it just worked out this way.
 

Matt Thomason

Adventurer
4. 3rd party publishers build their own stuff (ORC) and leave the realm of D&D "compatibility" and do their own thing.

5. Now D&D and its material are completely controlled by Hasbro.
4. is the bit that might not go their way in this hypothetical.
Especially because I know some 3PPs quite happily saying they intend to use ORC+Black Flag SRD, along with "for 5e" on the cover (and potentially even with "Compatible with the Dungeons and Dragons[tm] game" or some variant thereof.

This results in

5. Now all the 3PP material for D&D is not constrained by a single word in the OGL and people are going further than they could within it and claiming <gasp> compatibility.
In this situation , it seems to me Hasbro have lost everything, rather than gained it. They now have no control at all - except, of course, for C&Ds and court dates, which may still be all they need if everyone backs down. If I don my "think like a suit" hat, I feel having as many people as possible bound to your license is a win, with the goal being to play with the licensing rights until you get the best possible mix of control (as much as you can get), coverage (as many licensees as you can get), and rights granted (as little as you can get away with) - but there are certainly some points on that 3D graph with worse overall scores than others.

In reality, I assume it'll be a mix of your version and mine ;) The big question will be whether Hasbro have an overall gain or an overall loss to the current position. Lots of control over a tiny number of 3PPs is pretty worthless at the end of the day - but so is having lots of licenses to 3PPs allowing them to do anything they want.
 

pogre

Legend
4. is the bit that might not go their way in this hypothetical.
Especially because I know some 3PPs quite happily saying they intend to use ORC+Black Flag SRD, along with "for 5e" on the cover (and potentially even with "Compatible with the Dungeons and Dragons[tm] game" or some variant thereof.

This results in

5. Now all the 3PP material for D&D is not constrained by a single word in the OGL and people are going further than they could within it and claiming <gasp> compatibility.
In this situation , it seems to me Hasbro have lost everything, rather than gained it. They now have no control at all - except, of course, for C&Ds and court dates, which may still be all they need if everyone backs down. If I don my "think like a suit" hat, I feel having as many people as possible bound to your license is a win, with the goal being to play with the licensing rights until you get the best possible mix of control (as much as you can get), coverage (as many licensees as you can get), and rights granted (as little as you can get away with) - but there are certainly some points on that 3D graph with worse overall scores than others.
I like your version of 5! I hope you are right.
 

Steel_Wind

Legend
WotC/Hasbro wouldn't have any standing that I can see - they're not a party to a contract between (say) you and me.

So I think your suggestion is one potential way around the issue!
Standard Charge Terms are incorporated by reference into most Mortgage agreements.

But really, this is all one big distraction.
 

Darkholme

Villager
Hihi. I used to have an ENWorld account, a very long time ago (before 4e came out) and I made a new one today because all of this new OGL v2 / 1.2 stuff - anyways. I would like to ask any of the lawyers here about this. A few people have brought it up and I think maybe some replies have been hinted at, but I just wanted to check.

If I create my product using the Mongoose Pocket Player's Handbook, my OGL for that product is between me and Mongoose. Even though WotC IP is in there, WotC licensed their SRD to Mongoose, Mongoose then licensed their own content under their modified copy of the OGL and sublicensed the WotC content to me. There is no agreement formed directly between me and WotC.

So... I'm a bit confused. (Not a lawyer.)

They say 1.0a remains valid for already published material. But 1.0a both allows and requires the licensee to offer the same agreement (OGL 1.0a) for sublicensing. And it expressly forbids modifying its own terms. If any instance of 1.0a remains valid, then both those provisions would remain in force.

Can anyone versed in legal matters see any way that Wizards could legally prevent sublicensing from, say, d20srd.org? Or are they now relying entirely on fear and the cost of litigation?

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?

So - This "De-Authorize 1.0a" business. It is a thinly veiled threat to sue you into oblivion if you make new d20 content that sublicenses from someone else, something cross compatible with 3.5 like Mongoose Pocket Players' Handbook, or d20SRD - or a new derivative game like Pathfinder 1e, or Starfinder, right? Justin Alexander's twitter thread about how this is "cultural vandalism" isn't way off base?

Thank you for your time.
 

S'mon

Legend

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