OGL Legal Discussion of OGL 1.2

pemerton

Legend
Riddle me this, legal minded peope. Suppose that:

In 2022 "Toadstool Games" (TG) published "Forest of Fancy" (Fof), an original RPG where you play intelligent furry animals. TG also publised an SRD for FoF as Open Gaming Content under the OGL 1.0a.

Then in late 2023 "Greenrock Games" (GG) publishes "Sea of Serenity" (SoS), a 3rd party expansion for FoF with rules for aquatic animals. It includes a fair amount of text directly taken from the FoF SRD.

TG then sues GG for copyright infringement, claiming the distributing TG's copyrighted text without a valid licence, as the OGL1.0a was supposedly "deauthorized" by wotc earlier that year. GG doesn't deny copying TG's content, but maintains that their licence is as valid as ever and the "de-authorization" is invalid. GG starts a GoFundMe to cover legal costs and raises enough to hire an expert law firm.

To resolve this the court will have to rule on whether or not the OGL 1.0a has been "deathorized" or not. Will this set precedent in case wotc later starts a similar lawsuit against a 3rd party D&D publisher?
This has been discussed at length in various threads including I think this one.

WotC is not a legislator. It has no power to change the contractual relations that exist between TG and GG.

If TG and GG have promised one another that they must from time-to-time reproduce a bit of text (ie the text of the OGL v 1.0a) in which WotC claims copyright, then they are risking copyright infringement if they don't have WotC's permission to do that. Other posts and threads have canvassed the various plausible arguments that WotC has expressly or implicitly granted such permission.

To resolve this the court will have to rule on whether or not the OGL 1.0a has been "deathorized" or not.
No it won't. Solving a dispute between TG and GG won't require a court to form any view about what legal relationship exists between WotC and those who purport to have licence agreements with WotC.

EDIT: At the same time @S'mon was XPing this post I was XPing his post not far upthread which says much the same thing!
 

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pemerton

Legend
I have no idea if this is standard or not
I don't know how typical it is. I don't think it's outrageous.

but this seems to me to be intended to allow them to blatantly misrepresent the license in materials distributed with it, and say "oops" later, and provide insulation agains the type of representation they provided for 1.0a in their FAQ.
I think it's probably more complicated than this.

For instance, when you are engaged in pre-contractual negotiations with WotC then you are not bound by the contract, and hence not bound by section 9. If those negotiations, including representations made by WotC, change the meaning of the licence, including perhaps of section 9, then an interpretive question arises which section 9 doesn't necessarily settle on its own.

And section 9 doesn't seem to say anything about post-contractual representations.
 

demoss

Explorer
And section 9 doesn't seem to say anything about post-contractual representations.
Since it strictly limits the meaning to what is in the terms, doesn't it therefore exclude any post-contractual representations?

Given the nature of an open license, there are no pre-contractual negotiations that I can see, only WotC's representation of the license, and the text of the license.

Am I missing something obvious here?
 


pemerton

Legend
Since it strictly limits the meaning to what is in the terms, doesn't it therefore exclude any post-contractual representations?

Given the nature of an open license, there are no pre-contractual negotiations that I can see, only WotC's representation of the license, and the text of the license.

Am I missing something obvious here?
Post-contractual representations could generate an estoppel. Depending on their content and context, they could vary the terms of the licence.

Pre-contractual negotiations might include things that WotC says in the course of presenting its offer and/or inducing parties to take it up.

One possible construction of section 9 is that parties who enter into the contract agree to set aside all those pre-contractual representations. But what if those pre-contractual representations appear to change the meaning or scope or operation of section 9 (eg, to pick a stark if unlikely possibility, what if WotC posted a blog saying - This is what our contract means, and don't worry about section 9 in respect of what we're saying here)? There are answers to these questions, and methodologies in the common law of Washington State for addressing them. But I don't know what those are.

EDIT: If you're a board/card-gamer, or maybe if you're an IT person, a loose way to think of this is in terms of "order of operations". Section 9 doesn't get to specify its own supremacy over all other legally relevant events that occur. Whether it dominates those other events, or they affect it, depends on the application of the appropriate rules of contract law.
 


Xyxox

Hero
If TG and GG have promised one another that they must from time-to-time reproduce a bit of text (ie the text of the OGL v 1.0a) in which WotC claims copyright, then they are risking copyright infringement if they don't have WotC's permission to do that.
Permission to reproduce that text was granted by WotC in perpetuity.
 


Darkholme

Villager
BTW to all publishers - if you don't already have a website that republishes all the WoTC SRDs with OGL 1.0a, I'd advise doing so. Doing that means you have accepted their offer while it's still open, and you don't have to go get your SRD stuff from a possibly abandoned website/publisher.

Edit: Here's my own publication of SRD 5.0. Thanks for your offer WoTC - I accept!
So, If I understand correctly, something like this? (someone tell me if I did it wrong.)
[Seems it's not so simple.]
 
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SoonRaccoon

Explorer
I expect clawing back the 5e SRD is the main thing they really care about right now. If a 3.5 derived game becomes the next hot thing, they may try to flex their legal muscles there, but that's not the current landscape. Any truly third party content released under 1.0a WotC likely doesn't give a second thought to.
 

Saracenus

Always In School Gamer
I apologize if I've missed it, but I haven't seen lawyers discussing 9(b) of OGL 1.2 draft yet:

(b) Entire Agreement and Disclaimer of Reliance. This license governs your use of Our Licensed Content. This license consists only of the terms expressly included herein, and not any matter not expressly included herein. In accepting this license, you represent and warrant to us that you have relied only on the terms of the license and the advice of your own counsel, if any; you have not relied on anything that is not expressly a part of this license.

I have no idea if this is standard or not, but this seems to me to be intended to allow them to blatantly misrepresent the license in materials distributed with it, and say "oops" later, and provide insulation agains the type of representation they provided for 1.0a in their FAQ.

?

(Also, does 1.0a not having this type of clause and one being added now increase the weight of the old FAQ and other communications surrounding 1.0a, or is it completely irrelevant?)
See my post earlier in the thread linking a YouTube of Nerd Immersion (Ted) and Noah Downs, Esq. (AKA MyLawyerFriend):
OGL - Legal Discussion of OGL 1.2
They go over this section and in modern contracts this is, apparently, completely normal. In fact Noah had blogged before the release of 1.2 that is was bonkers that WotC's 1.1 "draft" didn't contain this section.
 



demoss

Explorer
See my post earlier in the thread linking a YouTube of Nerd Immersion (Ted) and Noah Downs, Esq. (AKA MyLawyerFriend):
OGL - Legal Discussion of OGL 1.2
They go over this section and in modern contracts this is, apparently, completely normal. In fact Noah had blogged before the release of 1.2 that is was bonkers that WotC's 1.1 "draft" didn't contain this section.
Thank you! That's a great video (ok, first half an hour is great, still watching). Anyone interested in the situation who is not lawyer should probably watch it.

 

Staffan

Legend
Did I do it right?
I'm not a lawyer, but to my untrained eye what you've done here is just repost the content, and haven't made it a separate work. What you should probably do is:
  • Go over the files and make sure there's nothing in them that the original publisher has called out as product identity. For example, I understand that there's a spell in the 3.5e SRD that uses umber hulk blood as a component, and you probably want to get rid of that.
  • Write your own legal statement with declarations of product identity and open game content. Look at the legal.rtf file in the 3.5e SRD for an example. You should almost certainly not copy their declaration verbatim, because in doing so you'd declare that the terms Dungeons & Dragons, Wizards of the Coast, Forgotten Realms, etc. are your product identity, and that seems like a big no-no.
  • Update section 15 of the OGL in each of your publications.
That seems like a minimum you'd need to do, and I can't guarantee that that would be enough.
 


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