OGL My thoughts on the new OGL v1.2 draft

pemerton

Legend
If one updates the OGL 1.0a on their product to OGL 1.2 then section 9 makes that acceptable.
OGL v 1.2, as released in draft form, is in my view not plausibly construed as an "updated version" as that phrase occurs in section 9 of the OGL v 1.0a. Thus, I don't think that anyone relying on the OGL v 1.0a is permitted to "update" to current draft v 1.2 - unless the only OGC in their work that is not theirs is WotC's, as I think we can take it that WotC have implicitly permitted that change by way of their notice of deauthorisation.
 

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Yeah. Real bad.

Also. Wait…so D&D as a whole made $100 million last year…and they bought D&D Beyond for $150 million. So was Beyond itself worth more than the D&D brand itself? That can’t be right.
D&D Beyond has solid subscription revenue and digital sales. Very scalable and Curse did all the initial software spending outlay while WoTC made license revenue at low risk. WoTC put the hammer down on competition on DMs Guild and then scooped it up when it was a proven success.

Most valuations are on EBITDA and once the basic running costs are covered, digital platforms make a lot compared to selling physical goods.

Otherwise, D&D is a solid business but dwarfed by MtG. The whole model is buy some books and play. And the DM buys most of the books. Really hard to scale. Very slow turnover of editions. Almost all the money is in the core books.
 

Haplo781

Legend
For instance, it says that "Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content." What is meant, in that sentence, by the verb "licensed"? What permissions are part of that licence?
Notably, the OGL allows for sublicensing, so deauthorization might not do jack-all if this language stands.
 

I don't know much about CC. What stops someone who releases work under CC subsequently retracting and refusing to enter into new licences?
The "viral" clause in the CC 3.0 is section 8(a): "Each time You Distribute or Publicly Perform the Work or a Collection, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License."

Notably though, the CC-BY isn’t "irrevocable" either, it’s just a perpetual, worldwide and royalty-free license under those terms.

The viral nature of the OGL 1.0(a) appears to have even stronger wording to me, but I might be missing some nuances. From section 9: "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."

Are you now prepared to argue that the CC is also dysfunctionally viral if someone revokes their offer?

For the past 23 years, everyone has assumed that Section 9 in the OGL 1.0(a) actually means what it says. If you’ve published any Open Game Content under the OGL, that content is added to the pool of Open Game Content that everyone can use under the terms of the license (old or new versions).
 

pemerton

Legend
I would find that more credible if this was not an apparent change of perception over time. That tells me either the earlier participants on WOTCs side were deluded or the current ones are lying or deluded. You can substitute "confused" for "deluded" in that sentence if you prefer, but I don't think that substitution substantially changes it.
Frankly, this is just bizarre. It's utterly routine for parties to contracts, or similar legal arrangements, to identify new possible constructions of their entitlements and powers under those contracts and try and exercise them.

Sometimes this is to try and wriggle out of things. Sometimes this is to try and get others to do new things. Sometimes it is "offensive", sometimes "defensive".

Courts as well as parties develop and change their understandings also. I probably can't mention the best-known US examples for board rules reasons, but I'm sure you've heard of some of them.

WotC had a view about the limits of its legal powers when it posted the FAQ. It now has a different view. It seems fairly clear that Dancy wanted a licence that would bind WotC in ways it now asserts it is not bound. Presumably his lawyers at the time thought they'd achieved that, and that WotC believed they had achieved that. Now WotC asserts differently. It may have been wrong then. It may be wrong now. There's no reason to suppose that it was lying, or self-deluded, or even confused (not all error is confusion), on either occasion.

You, of course, have a perspective given your profession and experience that I cannot share, but I will have to state that it would not be the first time I have seen a company get into a contract related process that even lawyers in the field considered pretty questionable.
I reiterate my view that talk of WotC lying, or being deceptive, adds little to the discussion. As far as the legal significance of the FAQ etc, here's the earliest post I know about that made on these forums. I posted it in mid-2008: GSL & SRD -- Comments, Questions, and Hopes
 

Morrus

Well, that was fun
Staff member
Frankly, this is just bizarre. It's utterly routine for parties to contracts, or similar legal arrangements, to identify new possible constructions of their entitlements and powers under those contracts and try and exercise them.

Sometimes this is to try and wriggle out of things. Sometimes this is to try and get others to do new things. Sometimes it is "offensive", sometimes "defensive".

Courts as well as parties develop and change their understandings also. I probably can't mention the best-known US examples for board rules reasons, but I'm sure you've heard of some of them.

WotC had a view about the limits of its legal powers when it posted the FAQ. It now has a different view. It seems fairly clear that Dancy wanted a licence that would bind WotC in ways it now asserts it is not bound. Presumably his lawyers at the time thought they'd achieved that, and that WotC believed they had achieved that. Now WotC asserts differently. It may have been wrong then. It may be wrong now. There's no reason to suppose that it was lying, or self-deluded, or even confused (not all error is confusion), on either occasion.

I reiterate my view that talk of WotC lying, or being deceptive, adds little to the discussion. As far as the legal significance of the FAQ etc, here's the earliest post I know about that made on these forums. I posted it in mid-2008: GSL & SRD -- Comments, Questions, and Hopes
Sure, but it speaks to trust, good faith, and the reliability of WotC as a partner.
 



As I said, I don't know how CC works, or purports to work. I don't even know its contractual in its operation.
Here's the text of the CC-BY, the version that WotC is proposing to use for some of its content: https://creativecommons.org/licenses/by/3.0/legalcode.txt

It's designed to effectively put works irrevocably into the public domain, worldwide. In consideration, you will always get credit as specified. At least, I think that's meant to be the "peppercorn".
 


mamba

Hero
So assuming that’s accurate, Paizo as a whole (PF1E, PF2E, Starfinder, APs, etc) is still less than 1/2 the size of D&D. Paizo is 39% the size of D&D, to be exact. And that’s the next closest competitor.
that might be changing apparently PF2e is now sold out pretty much everywhere ;)
 

mamba

Hero
Yeah. Real bad.

Also. Wait…so D&D as a whole made $100 million last year…and they bought D&D Beyond for $150 million. So was Beyond itself worth more than the D&D brand itself? That can’t be right.
no, revenue of 1 year is not the valuation of a company. That would be maybe 20 or 30 times profit (or more, if you show fast growth / potential...)
 

Morrus

Well, that was fun
Staff member
no, revenue of 1 year is not the valuation of a company. That would be maybe 20 or 30 times profit (or more, if you show fast growth / potential...)
In the case of WotC/Hasbro, it's a publicly traded company. Hasbro's value is a matter of record.
 




no, revenue of 1 year is not the valuation of a company. That would be maybe 20 or 30 times profit (or more, if you show fast growth / potential...)
You could do a very crude estimate:

Take Hasbro’s market cap and multiply it by the proportion of annual revenue that you know derives from D&D. If all Hasbro’s assets were fungible and identical in the eyes of a potential buyer, this would be the market value.

But until someone buys the IP, we can’t actually know what it’s worth. The value of anything is just the amount that the last sucker was willing to pay for it.
 
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Micah Sweet

Legend
Where is section 9 of the existing OGL mentioned in the draft 1.2 document?

Here is the whole text of the notice of "deauthorisation":

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 does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content.​

What is the legal effect of this? And what is the legal basis on which it purports to operate? I don't think it's clear.

For instance, it says that "Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content." What is meant, in that sentence, by the verb "licensed"? What permissions are part of that licence?

To me, the most obvious way of understanding that notice is that it is a withdrawal of the offer to license the SRD on the terms set out in the OGL v 1.0a. This means, in terms of section 2 of the OGL v 1.0a, that the SRD is not "Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License." What effect does that have on existing grants of permission under section 4? I've conjectured some possibilities in the PSA thread, and you've read my posts. One possible construction is that it means the SRD is no longer the subject matter of the section 4 grant, as that grant is (on the conjectured construction) confined to OGC to which currently contains a section 2 notice.

I don't know if the preceding is the argument that WotC is relying on. They may have several in mind. It's the best argument that I know that gives WotC the result it wants - it confines the previous permission granted very narrowly, allowing existing works to continue to be sold but brining all future licensing of SRD OGC (including by way of sub-licences) to an end.

If this is your interpretation of section 9, I don't agree with it. I can't see any plausible construction of section 9 on which it contains a power of revocation.

And? This has been discussed to death in many threads including the lawyer-PSA thread. I don't see how it bears on the point I was making, which is that WotC in its FAQ never said that the offer to license would not be withdrawn.
If you don't publish anything under the 1.2, in what way does the de-authorizstion clause apply to you?
 


LordRuyn

Explorer
If you don't publish anything under the 1.2, in what way does the de-authorizstion clause apply to you?
IANAL, but to my understanding it's a notice outside of the license with an effective date that is TBD. When the license is published the "de-authorization" goes into effect on the date stated.
 

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