My thoughts on the new OGL v1.2 draft

[Thomas Shey]

What I'm saying is that establishing legal rights, based on the interpretation of a contract, is not always straightforward.

Some litigation involves arguing over facts. But a lot of it involves arguing over who has what rights, given the undisputed terms of an instrument. It's not always the case that one of the parties to the litigation must be lying or self-deluded.

Perhaps its a semantic argument, but I'd say if you're arguing for an interpretation of a contract that supports your interests that is not supported by the law that's virtually the definition of self-deluded. You may not be clear on that fact, but that's part of what makes it deluded.

(Now if you just go into it hoping that's how it'll work out, that may be an overly strong term; then, if the case shaking out seems pretty clear, you may simply be ignorant. Of course this skips the cases where the contract and law there in is muddy as all hell, in which case you may be over-optimistic. In one fashion or another, however you seem divorced from reality; the only question is whether you're deliberately keeping yourself there or simply in the process of discovering it).

 

[pemerton]

Perhaps its a semantic argument, but I'd say if you're arguing for an interpretation of a contract that supports your interests that is not supported by the law that's virtually the definition of self-deluded.

I'm not sure how much experience or familiarity you have with legal argument. In the time that this discussion has been going on I've written or helped write four exam papers. Each of them has multiple issues - interpretive and factual - where the legal answer is unclear: that's the point of a law exam.

I've posted, in this and other threads, a range of plausible arguments for various constructions of the OGL. None of them is obviously wrong (hence plausible). None is knock-down or presented by me in a definitive or dogmatic fashion.

The description of WotC as lying, or deceptive, or self-deluded, is in my view completely inapt and gets in the way of people trying to understand what the legal effect and operation of the existing, and the proposed new, OGL are.

 

[Minigiant]

They've got a range of concerns. They're not hiding them, and I think most of us can see what they are.

It's not normal for large commercial entities to make their commercial planning public. I don't think WotC is likely to break this pattern.

It's also not helpful to the discussion to talk about "lying" or "deception", at least in my view. That doesn't actually help anyone understand what WotC is attempting to do, nor what rights they might have against WotC, nor even what an improved draft of an OGL might look like.

I'm not saying WOTC is lying or using deception (yet, because they are)

What I'm sayin is that when WOTC brought in all those #PPS for their secret meeting, they should have told them:

We REALLY don't give a HOOT what you all do as long as you don't:

1. Purposefully make offensive or disturbing content
2. Make a VTT, character databasse app or site, or some other non-book D&D product to compete with the ones we are planning
3. Push a version of 5e as a complete game as a competitor AFTER One D&D is lanched

If they did that, we would not be in this situation.

 

[Nikosandros]

Building on that, they should consider letting some "branded" products be sold on DnDBeyond, for a royalty. That would make DnDBeyond even better, generate another revenue stream for WotC, and give 3PP access to a huge market.

I mentioned this in another thread, but one reason that I don't buy more 3PP is because I rely on DDB so much when running my games, so material that isn't integrated into it is a pain (particularly monsters, spells, and magic items).

The introduction to the draft contains the following text:

Platforms such as D&D Beyond and DMs Guild provide additional paths to share your D&D content under different license terms.

This seems a strong indication that they are planning to allow 3PPs to publish on DDB in some form.

 

[FrogReaver]

No it doesn't. The community of people using the OGL is not a reference to the ability of the community to use the SRD. I'm not part of the community of people using the OGL. Changing my ability to enter into a licence with WotC isn't a change to the rights of the community of people using the OGL.

I'm happy to accept that you're not sensitive to the difference in meaning. But it's not the case that what WotC said clearly says what you took it to say.

They didn't. I've just shown how your paraphrase of what they said is inaccurate. When what's at stake are the terms of a commercial licence, it's not unreasonable to expect people to read your FAQ accurately.

What I'm saying is that WotC never said that it would not withdraw the offer. They did say that had no power to unilaterally vary the terms of existing licences. I think that is correct. They are not now clearly saying otherwise, although some of their non-legal statements have flirted a bit with the idea.

In post 2140 of the PSA thread you can see what I think is their best argument for the position they currently assert. It doesn't rely on any spurious notion of "deauthorisation".

Sitting the issue of withdrawal of offer aside, there are many parties currently comprising 'the community of people using the OGL". The clear issue around declaring it 'deauthorized' is that even those parties won't be capable of using OGC under the OGL 1.0a anymore because of section 9. You are only allowed to use authorized versions of the OGL (unless somehow you are claiming that's not the actually the case - in which case that's a new argument to me and I'd be interested in hearing it).

So deauthorization does invalidate the earlier explanation in the FAQ. It's more than just a fancy way of saying the offer is withdrawn. So I'm with @Jer, they were either lying then or are lying now.

 

[FrogReaver]

A question: Is section 9 (using any authorized license) meaningful other than for new products that use OGC? There is no need to choose a license for existing products. Those seem to have their license already set.

TomB

If one updates the OGL 1.0a on their product to OGL 1.2 then section 9 makes that acceptable. Thus, I'm not sure how the license is 'already set'?

 

[FrogReaver]

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?

Does it matter if they have or if they simply 'could'?

 

[tomBitonti]

If one updates the OGL 1.0a on their product to OGL 1.2 then section 9 makes that acceptable. Thus, I'm not sure how the license is 'already set'?

My meaning was this: Each product uses a specific version of the license. When distributing a new product, that version is selected. A version being selected and the product distributed, that product continues to use the same license version.

Then, the ability to choose a license version is only meaningful in preparation for distributing a new product.

Edit: This is important because if all license offers are withdrawn, no new products can be distributed under the OGL, and the ability to choose a license version is no longer meaningful.

This is being considered while setting aside the question of whether a license can be de-authorized. My statements assume there was no de-authorization.

TomB

 

[FrogReaver]

My meaning was this: Each product uses a specific version of the license. When distributing a new product, that version is selected. A version being selected and the product distributed, that product continues to use the same license version.
Then, the ability to choose a license version is only meaningful in preparation for distributing a new product.
TomB

For print material I 100% agree. For digital the lines may blur slightly.

 

[tomBitonti]

For print material I 100% agree. For digital the lines may blur slightly.

Yeah. I presume that a product may be redistributed choosing a different version of the license, which is trivial to do for content which is distributed digitally. But, such a change is not necessary once a distribution has been made under a specific version.

Sigh. Unless the offer of a particular license, currently in use, is withdrawn.

TomB