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

[SAVeira]

One important take-home from this is that lawyers don't always agree with each other! I guess if they did, we wouldn't need courts.

Exactly what my grand-uncle, a very successful criminal lawyer once explained to me when I was in high school and was concerning going to law school.

 

[GMforPowergamers]

not exactly a lawyer per say but before all this:

 

[Xethreau]

not exactly a lawyer per say but before all this:
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Evil Hat used to use OGL for Fate, But they've now moved to CC3 BY, for similar reasons as I understand.

 

[Morrus]

not exactly a lawyer per say but before all this:
View attachment 271481

That’s a different use case to most of us. They’re licensing out their own system; most OGC creators are using it to license in WotC’s system.

 

[GMforPowergamers]

That’s a different use case to most of us. They’re licensing out their own system; most OGC creators are using it to license in WotC’s system.

right but they chose not to use the wording/construct of the WotC one because they didn't trust it... they saw SOMETHING in it.

 

[Snarf Zagyg]

Another lawyer opines.

That's .... actually a pretty sound and careful analysis.

 

[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

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

IMO this quality of analysis is usually billed for, so consider ourselves fortunate.

 

[mhd]

not exactly a lawyer per say but before all this:
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The new Chaosium license? That's definitely not the only reason they did this, though.

 

[pemerton]

And the OGL does specify a right to terminate. But as is said in the letter on behalf of Sad Fishe Games, The license can only be terminated in cases of IP infractions!

Note that section 13 doesn't expressly specify that it is the sole basis for termination. So the argument that it is the sole basis depends on establishing an implication.

This is an illustration of this point:

the scope and revocability of a license to use copyrighted materials is subject to ordinary principles of contractual interpretation.

Naturally the letter advances the interpretive argument most favourable to the client. I don't think it's a hopeless argument, but it can't be treated as knock-down either.

 

[pemerton]

I should add: I'm an academic lawyer in Australia. I don't have a practising certificate and am certainly not giving legal advice!

I do teach and publish in private law and legal interpretation (among other fields), although contract and IP law - especially the US versions thereof - are not my principal areas of expertise.