OGL 1.1... quote the lawyers (and link)

[Morrus]

If you know of somebody who is (or at least claims to be) a lawyer who has commented on the new OGL v1.1., put it in this thread.

If you are a lawyer, feel free to comment.

Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my...

www.enworld.org

 

[darjr]

Note there is a rumor of a letter to/from WotC lawyers about this floating around.

 

[Xethreau]

There is the Rules Lawyer on the 6e GSL in general

 

[Xethreau]

There is also this rumor / hearsay thing expressed in another thread.

My good friend is an IP lawyer. He opines that the old OGL will hold because of this, among other reasons: contra proferentem

And that's helpful because the good-faith reading of "authorized" means "a liscence version produced by a WotC approved partner."

 

[Greg K]

They talk to a lawer about WOTC revoking/disauthorizing OGL 1.0a and states numerous items stacked against WOTC legally doing so. However, he also cites a federal statute (?) that would allow WOTC to do so in another 12 years (i.e. 35 years after releasing the license).

 

[Xethreau]

Wow that's a long video! In the interest of the community, can we get a summary?

 

[Greg K]

Wow that's a long video! In the interest of the community, can we get a summary?

Unfortunately, someone else will have to do so (Long Covid issues prevent me from doing it). I think he covers most everything in the first 15 minutes.

 

[Greg Benage]

Wow that's a long video! In the interest of the community, can we get a summary?

The legal case for revocability of 1.0a is weak, it would ultimately have to be decided in court, WotC can bully.

 

[Haplo781]

 

[Xethreau]

This is amazing! I feel so seen right now.

 

[Steampunkette]

That letter gives me SO MUCH HOPE.

Also the Class Action against Wizards would probably be amazing if Wizards pressed the matter, based on the letter.

 

[Cadence]

That letter gives me SO MUCH HOPE.

Also the Class Action against Wizards would probably be amazing if Wizards pressed the matter, based on the letter.

I was just wondering in another thread if those who had purchased gaming materials because of WotC representations about 1.0a being eternal would be a class too (seemingly a much bigger one).

 

[Alzrius]

I was just wondering in another thread if those who had purchased gaming materials because of WotC representations about 1.0a being eternal would be a class too (seemingly a much bigger one).

Not being a lawyer, I suspect my speculation on this is pointless, but I'll go ahead anyway.

My guess is that being a consumer who's potentially disaffected that more of the content they like can't/won't be produced doesn't grant sufficient legal standing to file a civil suit against a corporation, let alone be certified as a class. Third-party content producers, who're actually using the OGL v1.0a, might be able to, but just people who buy OGL products? That I doubt.

Which isn't to say that I'm not disheartened by this. I am! My game of choice is Pathfinder 1E, and I want to see new content produced for it by third-parties. Less than a week ago, I picked up a copy of Legendary Games' Legendary Companions (affiliate link), which is an excellent product; I'm very satisfied with my purchase. More than that, I'm happy to see quality products for the game I enjoy coming out more than three years after official support for it ended. I don't want that to stop...but I don't think that's sufficient legal basis for filing suit against WotC.

 

[Cadence]

Not being a lawyer, I suspect my speculation on this is pointless, but I'll go ahead anyway.

My guess is that being a consumer who's potentially disaffected that more of the content they like can't/won't be produced doesn't grant sufficient legal standing to file a civil suit against a corporation, let alone be certified as a class. Third-party content producers, who're actually using the OGL v1.0a, might be able to, but just people who buy OGL products? That I doubt.

I bought many of them expressly with the expectation of being able to use them to make a heartbreaker someday that I could do whatever I wanted with under the 1.0a (searchable web-things? maybe charge for some of it some day? certainly not have revocability hanging over my head).

 

[Steampunkette]

 

[Greg Benage]

Ahhh the lobotomizer followed me home!

 

[S'mon]

I teach commercial IP & Contract in England. I am not a practicing lawyer, I do not have a legal practice qualification. I contributed to this thread Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

Apart from the OP there's (I believe) Snarf Zagyg Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Mistwell Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
There's Steelwind Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Pemerton Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.

This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).

It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which is expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." I dont see any argument there is not an offer and acceptance. Sec 4 of the OGL recites the consideration for the agreement: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that WOTC is the party specifying the consideration. More generalky, usage of contract terms like offer, acceptance and consideration by WOTC demonstrates an intent to form an agreement with the licensee. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.

So long as an agreement is not illegal, a party cannot unilaterally terminate an agreement except to the extent that the agreement permits them to terminate the agreement. The sole statement relating to termination in the OGL is Sec 13 which states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

The commentary to-date revolves around Sec 9 which states "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." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation. First, a principle of contract interpretation is "expresio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement. Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.

Finally, aside from the contractual analysis there are equitable doctrines that make additional difficulties if WOTC advanced this claim. For example, there is a doctrine called "detrimental reliance" that says, even in the absence of a contract, if one person induces another person to change their position in reliance on a statement by the first person, the second person can reasonably rely on the statement. The WOTC Q&A by itself could support a claim for detrimental reliance. Other equitable doctrines such as "laches" and "unclean hands" would prevent WOTC from enforcing the OGL is they waited too long to enforce or acted inequitably. Again, the public statements by WOTC and its representatives would support a claim under equitable doctrines.

There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option is what is happening, but it is possible that option (x) is occuring.

Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O

 

[Umbran]

I am not a lawyer. However, it would seem to me that analysis of the situation should include, specifically and explicitly, the legal precedents surrounding other open licenses, like the GPL often used in open software.

I am informed that while the most recent GPL currently includes the word "irrevocable", early forms did not, but it held up as irrevocable in legal challenges anyway - later versions included the word for clarity.

Basically, check software open source cases, seeing as Dancey was using open software as a model when making the OGL.

 

[S'mon]

I am informed that while the most recent GPL currently includes the word "irrevocable", early forms did not, but it held up as irrevocable in legal challenges anyway - later versions included the word for clarity.

Basically, check software open source cases, seeing as Dancey was using open software as a model when making the OGL.

Do you know the name of a case where the GSL withstood challenge? I'm looking at Wikipedia Open source license litigation - Wikipedia but can't see it.

 

[Umbran]

Do you know the name of a case where the GSL withstood challenge? I'm looking at Wikipedia Open source license litigation - Wikipedia but can't see it.

I do not know case names, but back in 2003, SCO Group was challenging the legality of the GPL, in a suit against IBM. SCO had signed on to the license, then tried to sue IBM for copyright infringement. over it.

SCO Scuttles Sense, Claiming GPL Invalidity - GNU Project - Free Software Foundation

www.gnu.org