My thoughts on the new OGL v1.2 draft

[Scribe]

5. Summation

The OGL was meant to last forever. It was meant to be irrevocable and permanent. It was never meant to be "De-Authorized" at any point. The terms WotC is trying to use to get rid of it -now- did not exist as specific legal concepts when it was written, and the architects of the OGL have explained that, repeatedly. There is no situation where getting rid of the OGL 1.0a is a good thing or a positive step. Particularly since it shows WotC is entirely willing to blow up any deal it has previously made to increase the control and power they now possess for their shareholders.

WotC can no longer be trusted by third party publishers. There is no real "Path Forward" after this. The best they can do is enshrine 1.0a and pretend this fiasco never happened, but the ORC is still going to be written. And most publishers aware of this event will be signing on to it, or Creative Commons, or some other license that offers real stability long-term.

Even if they took out all the poison pills, it still can't be trusted. Wizards have shown they'll change terms whenever the like. No contract will ever be held in good faith.

 

[pemerton]

Isn’t it both? It also can potentially allow/shield a DM not selling anything that just shares homebrew d&d content on enworld?

I don't recall ever seeing a post on ENworld that purported to be licensed in terms of the OGL. Maybe there have been one or two that I'm forgetting?

 

[pemerton]

Lying to everyone for 20+ years about a license being irrevocable and then revoking it is deceptive business practice.

This argument of "it says perpetual which doesn't mean irrevocable" is a shift in the legal language over the last 20 years that has opened up a loophole that they're going to squeeze through.

I haven't seen anything from WotC that asserts that licences already granted can be revoked unilaterally (at worst there were hints of this in the commentary to the first leaked draft). The first leaked draft included a clause whereby parties to the new agreement forfeited their previous contractual rights. More recent comments and drafts involve WotC purporting to exercise control over future licences.

 

[Jer]

I haven't seen anything from WotC that asserts that licences already granted can be revoked unilaterally (at worst there were hints of this in the commentary to the first leaked draft). The first leaked draft included a clause whereby parties to the new agreement forfeited their previous contractual rights. More recent comments and drafts involve WotC purporting to exercise control over future licences.

Sorry I forgot - the new lie is that they're allowed to "deauthorize" the ogl. Which is the same result (cutting off access to existing srds that were supposed to be available in perpetuity) but is a different legal lie than the one that was leaked earlier.

 

[Dausuul]

With regards to this giving a back door to Hasbro to arbitrarily designate publishers "harmful" and thus shut them down without legal recourse, I would love for a lawyer to weigh in. My initial thought is that Hasbro would likely be on shaky legal ground if they couldn't prove a reasonable process for determining that a 3PP is "harmful" (i.e. they couldn't just wield "harmful" as a blunt instrument against competitors). But I can also see how this would be expensive to litigate and so even having the threat out there is chilling. Again, not a lawyer, so my thoughts on this are worth what they are worth (possibly not much).

Doesn't the license say you forfeit the right to sue them over their determination of "hatefulness?"

 

[pemerton]

Sorry I forgot - the new lie is that they're allowed to "deauthorize" the ogl. Which is the same result (cutting off access to existing srds that were supposed to be available in perpetuity) but is a different legal lie than the one that was leaked earlier.

Here's the earliest thread I could find using the ENworld search function in which I try to analyse the workings of the OGL in terms of private law. It's from 2008: D&D 4E - Interesting Article on OGL and 4E

A quick skim makes me think I might be wrong on some points of IP law (I wasn't an expert then, I'm still not an expert now). But the basic methodology is there. This stuff hasn't been kept secret by anyone in the intervening decade-and-a-half.

I want to add: I'm not defending WotC. Nor am I attacking them. I haven't purchased a WotC product, as best I recall, since I bought Into the Unknown (a late 4e book) around 2012. I don't play 5e D&D. I'm trying to explain, as best I can, what the legal situation appears to be. And what I'm saying hasn't changed all that much in 15 years.

 

[pemerton]

Doesn't the license say you forfeit the right to sue them over their determination of "hatefulness?"

What does "determination" mean? Does it mean their conclusion? Does it mean their process or reaching the conclusion? Is there an entitlement, in the contract law of Washington state, that a contracting party with this sort of power exercise it in good faith or non-arbitrarily?

I don't know the answers to those questions. But I think the answers to them are relevant.

 

[see]

If there are no orphan works of critical importance in the ecosystem already, this wouldn't be too difficult.

I wish I actually knew what the terms of the license Clark Peterson/Necromancer Games agreed to with WotC for the Tome of Horrors were.

I suspect, but do not know, that there's no way for Peterson/Necromancer/Frog God Games to get that content out under a non-OGL license.

 

[Greg K]

Luke (?) at The DM Lair gave, in my opinion, a good explanation of what is going on. WOTC's strategy all along has been to get rid of the OGL. The initial "draft" (as WOTC refers to it) was designed to be completely unacceptable. They used it as an "anchor" (a psychological technique) to set people's expectations of a worst case scenario and, with the current draft, step back things that Hasbro/WOTC really do not care about (e.g. royalties) to make it appear as they are acting in good faith while distracting people from the real issue- deauthorizing the OGL 1.0(a).

 

[Jer]

Here's the earliest thread I could find using the ENworld search function in which I try to analyse the workings of the OGL in terms of private law. It's from 2008: D&D 4E - Interesting Article on OGL and 4E

I'm actually no longer sure what you are arguing

Let me make my accusation on them being liars clearer. They presented the ogl as irrevocable for 20 years until now. So either they were lying then or they're lying now. Wiggle legal words aside, they presented it as a permanent deal and now they say it isn't. One of those is a lie.