Legal Discussion of OGL 1.2

[pemerton]

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!

 

[pemerton]

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]

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?

 

[Sorcerers Apprentice]

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.

Haven't they voluntarily handed that power to wotc by using the OGL?

 

[pemerton]

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.

 

[pemerton]

Haven't they voluntarily handed that power to wotc by using the OGL?

No. Under section 9, they've agree to let WotC promulgate variant licence terms that downstream licensees with the TG/GG ecosystem can choose from. But they haven't given WotC any power to bring their own contractual arrangements to an end.

 

[Xyxox]

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.

 

[pemerton]

Permission to reproduce that text was granted by WotC in perpetuity.

As I posted:

Other posts and threads have canvassed the various plausible arguments that WotC has expressly or implicitly granted such permission.

 

[Darkholme]

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.]

 

[Darkholme]

[Deleted]