Menu
News
All News
Dungeons & Dragons
Level Up: Advanced 5th Edition
Pathfinder
Starfinder
Warhammer
2d20 System
Year Zero Engine
Industry News
Reviews
Dragon Reflections
Columns
Weekly Digests
Weekly News Digest
Freebies, Sales & Bundles
RPG Print News
RPG Crowdfunding News
Game Content
ENterplanetary DimENsions
Mythological Figures
Opinion
Worlds of Design
Peregrine's Next
RPG Evolution
Other Columns
From the Freelancing Frontline
Monster ENcyclopedia
WotC/TSR Alumni Look Back
4 Hours w/RSD (Ryan Dancey)
The Road to 3E (Jonathan Tweet)
Greenwood's Realms (Ed Greenwood)
Drawmij's TSR (Jim Ward)
Community
Forums & Topics
Forum List
Latest Posts
Forum list
*Dungeons & Dragons
Level Up: Advanced 5th Edition
D&D Older Editions
*TTRPGs General
*Pathfinder & Starfinder
EN Publishing
*Geek Talk & Media
Search forums
Chat/Discord
Resources
Wiki
Pages
Latest activity
Media
New media
New comments
Search media
Downloads
Latest reviews
Search resources
EN Publishing
Store
EN5ider
Adventures in ZEITGEIST
Awfully Cheerful Engine
What's OLD is NEW
Judge Dredd & The Worlds Of 2000AD
War of the Burning Sky
Level Up: Advanced 5E
Events & Releases
Upcoming Events
Private Events
Featured Events
Socials!
Twitch
YouTube
Facebook (EN Publishing)
Facebook (EN World)
Twitter
Instagram
TikTok
Podcast
Features
Top 5 RPGs Compiled Charts 2004-Present
Adventure Game Industry Market Research Summary (RPGs) V1.0
Ryan Dancey: Acquiring TSR
Q&A With Gary Gygax
D&D Rules FAQs
TSR, WotC, & Paizo: A Comparative History
D&D Pronunciation Guide
Million Dollar TTRPG Kickstarters
Tabletop RPG Podcast Hall of Fame
Eric Noah's Unofficial D&D 3rd Edition News
D&D in the Mainstream
D&D & RPG History
About Morrus
Log in
Register
What's new
Search
Search
Search titles only
By:
Forums & Topics
Forum List
Latest Posts
Forum list
*Dungeons & Dragons
Level Up: Advanced 5th Edition
D&D Older Editions
*TTRPGs General
*Pathfinder & Starfinder
EN Publishing
*Geek Talk & Media
Search forums
Chat/Discord
Menu
Log in
Register
Install the app
Install
Community
General Tabletop Discussion
Publishing Business & Licensing
OGL 1.1... quote the lawyers (and link)
JavaScript is disabled. For a better experience, please enable JavaScript in your browser before proceeding.
You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an
alternative browser
.
Reply to thread
Message
<blockquote data-quote="S'mon" data-source="post: 8880516" data-attributes="member: 463"><p>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 <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/" target="_blank">Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a></p><p></p><p>Apart from the OP there's (I believe) Snarf Zagyg <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8878707" target="_blank">Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a> and Mistwell <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8878709" target="_blank">Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a></p><p>There's Steelwind <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8879428" target="_blank">Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a> and Pemerton <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8879574" target="_blank">Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a></p><p></p><p>However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel <a href="https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8880148" target="_blank">Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.</a></p><p></p><p><em>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.</em></p><p><em></em></p><p><em>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).</em></p><p><em></em></p><p><em>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.</em></p><p><em></em></p><p><em>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."</em></p><p><em></em></p><p><em>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.</em></p><p><em></em></p><p><em>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.</em></p><p><em></em></p><p><em>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 <u>for one licensee</u> 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.</em></p><p><em></em></p><p><em>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 <img src="data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7" class="smilie smilie--sprite smilie--sprite22" alt="(y)" title="Thumbs up (y)" loading="lazy" data-shortname="(y)" /> 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 <img src="data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7" class="smilie smilie--sprite smilie--sprite22" alt="(y)" title="Thumbs up (y)" loading="lazy" data-shortname="(y)" /> is what is happening, but it is possible that option (x) is occuring.</em></p><p></p><p>Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O <img src="data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7" class="smilie smilie--sprite smilie--sprite8" alt=":D" title="Big grin :D" loading="lazy" data-shortname=":D" /></p></blockquote><p></p>
[QUOTE="S'mon, post: 8880516, member: 463"] 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 [URL='https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/']Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] Apart from the OP there's (I believe) Snarf Zagyg [URL='https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8878707']Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] and Mistwell [URL='https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8878709']Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] There's Steelwind [URL='https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8879428']Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] and Pemerton [URL='https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8879574']Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel [URL='https://www.enworld.org/threads/hello-i-am-lawyer-with-a-psa-almost-everyone-is-wrong-about-the-ogl-and-srd-clearing-up-confusion.694192/post-8880148']Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.[/URL] [I]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 [U]for one licensee[/U] 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 (y) 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 (y) is what is happening, but it is possible that option (x) is occuring.[/I] Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O :D [/QUOTE]
Insert quotes…
Verification
Post reply
Community
General Tabletop Discussion
Publishing Business & Licensing
OGL 1.1... quote the lawyers (and link)
Top