Legal Discussion of OGL 1.2

[MarkB]

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.

And yet, they've muddled through without any such clause in the previous OGLs for twenty years.

 

[Ondath]

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]

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]

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]

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.

 

[Ben from Periapt Games]

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]

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]

[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?

 

[Mercurius]

Especially that last sentence. Hmm.

 

[Enrahim2]

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?