So, who can 'authorize' and 'de-authorize' the OGL?

[wingsandsword]

Does anyone actually want to go ahead and produce a new product under the 1.0a OGL as they ever did and force WotC to sue them? Not just send a C&D but actually take the person to court?

Does anyone dare to make WotC have to defend the reading of the OGL that says they are the ones that can authorize or de-authorize it because they are the ones who wrote it originally?

I'm sure someone will do it.

It's just a matter of who, and when.

The OGL ecosystem is large, and while litigation could be time consuming and expensive. . .if some OGL small business did start that fire, the odds that they'd get support from crowdfunding, from other gaming companies, pro bono, or from organizations that support copyleft like the EFF is very high.

 

[DEFCON 1]

I'm sure someone will do it.

It's just a matter of who, and when.

The OGL ecosystem is large, and while litigation could be time consuming and expensive. . .if some OGL small business did start that fire, the odds that they'd get support from crowdfunding, from other gaming companies, pro bono, or from organizations that support copyleft like the EFF is very high.

I'm hoping they do... just to clear up the questions once and for all. Make WotC put their money where their mouth is.

 

[wingsandsword]

I'm hoping they do... just to clear up the questions once and for all. Make WotC put their money where their mouth is.

Of course, it will take years for such litigation to play out. Even after there's a ruling, there's still appeals.

I'd expect the issue to not truly be settled for at least 5 or 6 years after litigation began.

. . .and it could ALL be rendered moot at any time by new management at WotC deciding to rescind the new OGL and with it rescind the "de authorization" of OGL 1.0a leading to the entire litigation being dismissed. Even though nobody would use the OGL 1.0a anymore because the trust needed is broken, legally it would be moot.

 

[DEFCON 1]

Of course, it will take years for such litigation to play out. Even after there's a ruling, there's still appeals.

I'd expect the issue to not truly be settled for at least 5 or 6 years after litigation began.

. . .and it could ALL be rendered moot at any time by new management at WotC deciding to rescind the new OGL and with it rescind the "de authorization" of OGL 1.0a leading to the entire litigation being dismissed. Even though nobody would use the OGL 1.0a anymore because the trust needed is broken, legally it would be moot.

All of these things could and should happen.

Because otherwise what we have right now is nothing more than a Sword of Damocles hanging over every single would-be D&Dish-producer's head, with WotC not even needing to have their hand on the hilt. As far as I can remember... we have not seen a single person or entity even be threatened by WotC for using their stuff since the OGL has been released into the wild... even when they didn't use the OGL. All we have are all these designers and producers who assume WotC will come down hard upon them. But does anyone actually know for sure? I'm not sure there are. Does anyone know of anyone who has been?

If the "You don't even need to use the OGL" people are right... then everyone can just release whatever stuff they want right now with or without any licensing at all-- provided they are willing to "risk it". But if WotC themselves already know they have no leg to stand on as far as people needing their "permission" to make D&D-compatible products... then all they have is that Sword overhead that can't actually do anything (other than look threatening.)

So yeah... whether it's Paizo or someone else... someone NEEDS to call WotC's bluff. Because once they do (even if WotC then tries to take them to court)... the flood gates will open and everyone will start making products that can still work with D&D 5E/1D&D and WotC'll have no choice to try and sue all of them. Or else... do what I expect they intended to do all along... which is just product a 3DVTT that works well enough that more than enough Dungeons & Dragons fans will subscribe to and use it... and then 3rd party producers be damned. Let those small potato companies make PDFs for the shrinking pool of players who play at home without using VTTs, while they see their pool keep getting larger and larger (where even tables that play face-to-face in person still use the 3DVTT with monitors in front of everyone.) At that point, who cares what those 3PPs do?

 

[wingsandsword]

As far as I can remember... we have not seen a single person or entity even be threatened by WotC for using their stuff since the OGL has been released into the wild... even when they didn't use the OGL.

There have been some legal threats when some companies went too far.

I know HeroForge had to remove a "squid head" option for their miniature maker because WotC served them with legal notice they felt it infringed on their copyrights for illithid.

Not simply by just being a generic "squid head" option for miniatures, but by showing how their miniature design specifically copied multiple specific design elements of how WotC has consistently depicted illithid since the late 1990's.

I think there have been other cases of companies over-reaching, but they ended with not fighting back, because when it was spelled out to those companies they knew they'd gone beyond acceptable lines and they chose not to fight it.

 

[Stormonu]

The whole problem boils down to the fact that this was a "we won't sue you" agreement. Now, all of that is up in the air and until someone is willing to try and push it in a court, it's not clear what WotC will or won't sue over. And no one trusts any next step that might be taken, because who wants to risk being sued?

 

[rcade]

I'm thinking about it. I have nothing to loose and it would cost me only court fees (I think).

I wouldn't say that anyone has nothing to lose in a legal dispute. Being sued was the biggest challenge to my mental health that I've ever experienced in my life. And it took up a [bleep]-ton of time. And I gained 30 pounds in four months. And I got to know what it feels like to have a lawyer ask you multiple times "have you paid another $5,000 for my retainer?" where if you don't answer "yes" your ability to get justice disappears. And to not get justice anyway in the end.

 

[Dausuul]

But if WotC themselves already know they have no leg to stand on as far as people needing their "permission" to make D&D-compatible products... then all they have is that Sword overhead that can't actually do anything (other than look threatening.)

So that's the question, then: Is it the Sword of Damocles, or the Sword of Mordenkainen?

 

[Enrahim2]

Nowhere does it say who can authorize the license, or how that is accomplished.

I went down this rabbit hole in another thread. My thinking is that it is implied by who can publish new versions. Ryan Dancy recently went on record stating that "authorized" was supposed to discriminate between draft and non-draft versions. How I read that is that I am free to release content under the text of 0.1 linked above. Someone could then accept that license I offered to use my content. That person would then hold a valid license that arguably would be an OGL version published by wizards. However as it was considered a draft (not authorized), that person wouldn't be able to use that license to copy 1.0a material.

However someone obtaining a 1.0a license would (likely)be able to copy the material published under the 0.1 license.

Under this interpretation of "authorized", I think it would be common sense that it is the ones entiteled to publishing new license versions that would be the ones responsible for making clear if what they just published is a draft or not? That a version can go from being a draft to becoming considered a "non-draft" version when it is found to be good enough I guess is completely uncontroversial? That something can similarly be declared to go back to "draft" is however more problematic. However if such a thing was possible on a "global" level, I guess it would make sense that it would be only those responsible for declaring it a non-draft that could do this.

However from a legal perspective wizards is seemingly seeking several viable interpretations of how they can remove authorization. Another one is the presence of the term in a contract as opposed to for instance in a press release. In that case it would be the parts entering the contract that agree to "pretend" 1.0(a) is not authorized. As none of the parties gain any extra rights they had before by doing such a "play pretend" I don't see why not anyone could write a contract with such a "no longer authorized" language. However the other way around would as far as I can see not be possible, as that would be claiming new rights the contractors might not be entitled to grant themselves.

However on this second interpretation the lack of authorization would only affect those bound by the new ogl.

A third path they seem to take is to delete the current ogl from their website. This could be a play at words with regard to "wizards can publish new versions", and by no longer "publishing" it that somehow change the state of the version.

I am no lawyer, and I agree to the sentiment that the practical effect of this isn't neccessarily tied to law, but the fact that it is effectively scaring people off due to all the ambiguities this create. But I hope this can help explain how wizards can justify claiming to be in a privileged position to determine "authorization".

 

[Matt Thomason]

In that case it would be the parts entering the contract that agree to "pretend" 1.0(a) is not authorized.

It seems to me that given the viral nature of the OGL, this is the only viable way to de-authorize - by both parties involved making a new contract stating that it is. I would not use the word "pretend" for that, because it seems to me to be a perfectly fine (and the only possible way I can think of personally that doesn't involve a revocation for license violation) legal mechanism to do so.

The understanding the majority of us have come to is - Any contract between parties A and B that has consideration on both sides (thats an important part, and there's precident that indicates there is consideration on both sides here and it isn't a simple one-way grant of rights) cannot be terminated other than by the agreement of both parties, or through a mechanism specified in the contract itself.

e.g. "By agreeing to THIS agreement, you agree that THAT agreement is no longer authorized" (seeing as the word "authorized" seems to have absolutely zero legal meaning in contractual law outside of what is defined between the parties themselves within said contract(s) )

I can see the argument for no longer issuing any further authorizations by no longer hosting it on their site. But, the viral nature of the OGL allowing rights to pass via sublicences complicates this horribly. If WotC take down all copies of the SRD which have OGL 1.0(a) attached from their website, I have no idea whatsoever what happens if I try to use a copy of the SRD+OGL 1.0(a) from an alternative source to claim I have a new agreement with them. I would lean towards it creating a new agreement with everyone listed in S15 (including WotC themselves), but I am not confident enough to risk trying it