Burt Baccara
Explorer
To give some perspective on the leaked OGL 1.1 here is a March 19, 2000 interview with Ryan Dancey.
OGL 1.1... quote the lawyers (and link)
- Thread starter Morrus
- Start date
Minor note: they added CC BY in 2013, but as of right now their SRDs are still dual-licensed.
I am a lawyer. I have no professional expertise on this topic, have not done any specific research, and am not providing legal advice. This is based on my understanding of general U.S. contract law and other lawyers I have seen/read discussing this issue.
As an overriding principle, where a contract's terms are clear, a court will not look beyond the four corners of the document. However, if terms are missing or ambiguous, a court will try to determine the objective intent of the parties as to that term - i.e. what the parties would would have said if the issue had been spelled out in the contract.
Here the OGL 1.0 is silent as to whether or not it is revocable. (Alternatively it is ambiguous as to whether "perpetual" revers to revocation or merely duration; I think the overall analysis is the same either way). Thus a court would look at the intent of the parties on the issue.
Without delving deeply into the facts, I think it is clear that the licensee and licensors believed that OGL 1.0 was irrevocable. The FAQ and statements by Ryan Dancy discussed in other threads are clear on this. Other considerations a court could look to on this are the course of performance (WotC did not revoke the OGL over twenty years, despite revising the terms for 4E, and even when Pathfinder eclipsed D&D in the market; this suggests that it was understood to be irrevocable) and the reasonable commercial expectations of the parties (no reasonable company would build their entire business around licensed content if they understood that their license could be revoked by their main competitor at a moment's notice).
Yes, there are cases holding that "perpetual" licenses can be revoked at will. This seems to be the basis for other lawyers who have expressed the opinion that OGL 1.0 is revocable. However, without having reviewed those cases, I would assume that those courts did so based on an analysis of the specific facts at issue there. Put differently, based on my understanding of the principles of U.S. contract law, I would be VERY surprised if any case has held that were a contract is silent as to revocability, it is per se revocable, even where the parties had a contrary intent.
In sum, I believe OGL is irrevocable; while the actual license is silent, the parties' intent that it be irrevocable is clear. That said, WotC will be able to cite a number of cases holding (on different facts) perpetual license agreements are revocable, so they should be able to present at least a colorable case if they want to challenge this. I wouldn't underestimate the ability of savvy lawyers, in a high-stakes case such as this from putting up a good fight.
As a practical matter, I think any litigation between WotC and the major players (e.g., Paizo) will settle. In my experience most companies are risk-adverse; where stakes are very high for both sides, and neither has a clear slam-dunk case, they are going to settle for a compromise they can live with rather than rolling the dice. This means the revocability of OGL 1.0 may remain an unresolved issue that deters publishers from using it for a long time, even if the argument for it is weak.
As an overriding principle, where a contract's terms are clear, a court will not look beyond the four corners of the document. However, if terms are missing or ambiguous, a court will try to determine the objective intent of the parties as to that term - i.e. what the parties would would have said if the issue had been spelled out in the contract.
Here the OGL 1.0 is silent as to whether or not it is revocable. (Alternatively it is ambiguous as to whether "perpetual" revers to revocation or merely duration; I think the overall analysis is the same either way). Thus a court would look at the intent of the parties on the issue.
Without delving deeply into the facts, I think it is clear that the licensee and licensors believed that OGL 1.0 was irrevocable. The FAQ and statements by Ryan Dancy discussed in other threads are clear on this. Other considerations a court could look to on this are the course of performance (WotC did not revoke the OGL over twenty years, despite revising the terms for 4E, and even when Pathfinder eclipsed D&D in the market; this suggests that it was understood to be irrevocable) and the reasonable commercial expectations of the parties (no reasonable company would build their entire business around licensed content if they understood that their license could be revoked by their main competitor at a moment's notice).
Yes, there are cases holding that "perpetual" licenses can be revoked at will. This seems to be the basis for other lawyers who have expressed the opinion that OGL 1.0 is revocable. However, without having reviewed those cases, I would assume that those courts did so based on an analysis of the specific facts at issue there. Put differently, based on my understanding of the principles of U.S. contract law, I would be VERY surprised if any case has held that were a contract is silent as to revocability, it is per se revocable, even where the parties had a contrary intent.
In sum, I believe OGL is irrevocable; while the actual license is silent, the parties' intent that it be irrevocable is clear. That said, WotC will be able to cite a number of cases holding (on different facts) perpetual license agreements are revocable, so they should be able to present at least a colorable case if they want to challenge this. I wouldn't underestimate the ability of savvy lawyers, in a high-stakes case such as this from putting up a good fight.
As a practical matter, I think any litigation between WotC and the major players (e.g., Paizo) will settle. In my experience most companies are risk-adverse; where stakes are very high for both sides, and neither has a clear slam-dunk case, they are going to settle for a compromise they can live with rather than rolling the dice. This means the revocability of OGL 1.0 may remain an unresolved issue that deters publishers from using it for a long time, even if the argument for it is weak.
Which one is the Street Fighter case? Capcom U.S.A. Inc. v. Data East Corp.?
The Wikipedia article on that case has links to two others that found some game elements can be copyrighted: Tetris v. Xio and Spry Fox, LLC v. Lolapps, Inc. @S'mon has mentioned that the OGL is still a safer option because of the safe harbor, which I assume is because it’s not settled just where the idea stops and expression begins for tabletop RPGs.
@ninjayeti
What you say is (broadly) in line with the ideas that @Steel_Wind, @S'mon and I (with varying degrees of expertise and certainty) have been kicking around in the PSA thread.
Your point about the construction of the contract occurring in context rather than in a "per se" or mechanical fashion I think is especially important to stress for readers who are less familiar with how the process of legal interpretation works.
What you say is (broadly) in line with the ideas that @Steel_Wind, @S'mon and I (with varying degrees of expertise and certainty) have been kicking around in the PSA thread.
Your point about the construction of the contract occurring in context rather than in a "per se" or mechanical fashion I think is especially important to stress for readers who are less familiar with how the process of legal interpretation works.
Yes, indeed that's what I found when I looked.
Yep. I haven't read it, but it is set out and analysed, at least in part, in the Davinci case.
The other reason is because, as a matter of fact, heaps of stuff published under the OGL reproduces others' copyrighted text, or text and expression closely related to or derived from others' copyrighted text. Which is not a coincidence - that's exactly the state of affairs the OGL is meant to encourage!
But it means that keeping the work much the same but stripping away the OGL creates the risk of exposure to liability for copyright infringement.
Burt Baccara
Explorer
Some more, not lawyer quotes, but WotC material:
Software FAQ, Version 1.0 -- January 26, 2004, from wizards.com
Other Licenses: Frequently Asked Questions, Version 2.0 -- January 26, 2004
Open Game License: Frequently Asked Questions, Version 2.0 -- January 26, 2004 (note: this page was live until at least a Nov. 27, 2021 capture by archive.org https://web.archive.org/web/20211127200600/http://www.wizards.com/default.asp?x=d20/oglfaq/20040123f)
System Reference Document: Frequently Asked Questions
Key bit here:
d20 System Trademark FAQ: this one has some interesting bits on "character generator,""any program that reports the success or failure of an action," "creating an online RPG, MUD, MUSH, MOO," as well as, "character creation," and assinging experience points and "experience point chart."
The d20 System Concept: Frequently Asked Questions, Version 1.0
Revised (v.3.5), System Reference Document
Software FAQ, Version 1.0 -- January 26, 2004, from wizards.com
Other Licenses: Frequently Asked Questions, Version 2.0 -- January 26, 2004
Open Game License: Frequently Asked Questions, Version 2.0 -- January 26, 2004 (note: this page was live until at least a Nov. 27, 2021 capture by archive.org https://web.archive.org/web/20211127200600/http://www.wizards.com/default.asp?x=d20/oglfaq/20040123f)
System Reference Document: Frequently Asked Questions
Key bit here:
d20 System Trademark FAQ: this one has some interesting bits on "character generator,""any program that reports the success or failure of an action," "creating an online RPG, MUD, MUSH, MOO," as well as, "character creation," and assinging experience points and "experience point chart."
The d20 System Concept: Frequently Asked Questions, Version 1.0
Revised (v.3.5), System Reference Document
- Open Gaming License (12k RTF)
- d20 System License 6.0 (12k RTF)
- d20 System Guide 5.0 (788k RTF)
- Electronic SKU Download (ESD) Conversion Agreement(12k RTF)
Kit Walsh at the Electronic Frontier Foundation has written an article on the OGL.
Similar Threads
AD6_gamerati_skyscraper
Recent & Upcoming Releases
-
April 16 2024 -
May 31 2024 -
June 3 2024 -
June 4 2024 -
June 18 2024 -
July 16 2024 -
September 17 2024 -
October 1 2024 -
November 12 2024 -
February 18 2025
