OGL So WHY Didn't The OGL Contain The Word 'Irrevocable'?

Whether or not the Open Game License v1.0a is revocable is one of the main things being argued about during this whole OGL-gate crisis, with lawyers firmly stating opinions on both sides of the issue. We all know that Ryan Dancey, the OGL's 'architect' (along with IP lawyer Brian Lewis, who was WotC's in-house counsel at the time) firmly believes that the license is irrevocable--in his words, "If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license."

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But why didn't it just say so? On the face of it, including that simple word might have prevented this whole crisis. Dancey commented on Facebook:

because in Y2K that term was not used in state of the art copyleft licenses like the LGPL or the Apache or BSD licenses. There's no "magic word" in US contract law that lets you walk away from your obligations.

The OGL was based on existing software open source licenses; it even predates Creative Commons by a couple of years.

Just on this site there are lawyers on both sides of the 'revocabiity' debate, and on social media and elsewhere there are many more. In this thread no less than SIX lawyers weigh in over an 86-page debate, and they don't all agree. WotC clearly currently believes it to be revocable (but didn't believe so before), and Paizo believes the opposite.

The license does indeed contain the term ‘perpetual’, but many lawyers have argued that the precise legal meaning of that term is not the same as the common English meaning, and that it does not render a license irrevocable. On the other hand, legal minds have pointed out that the license contains no verbiage regarding 'de-authorization', or any mechanism for doing so. That said, if all lawyers agreed, we wouldn't need courts.


It's clear that Dancey's, Lewis', and indeed WotC's intent at the time was to make it impossible to revoke the OGL, and that that was the proposition offered to third party publishers at the time. D&D historian Ben Riggs (author of Slaying the Dragon: A Secret History of Dungeons & Dragons) comments:

This is a radical change of the original intention of the OGL. The point of the OGL was to get companies to stop making their own games and start making products for D&D. WoTC execs spent a ton of time convincing companies like White Wolf to make OGL products. To act like the existence of Paizo or Kobold is a perversion of the OGL may be gaslighting, it may be ignorance, but it is certainly nonsense.

Everybody believed the OGL was irrevocable at the time. Dancey and Lewis did. WotC did. The entire industry did. Everybody. Whether or not the license can be de-authorized, it is certain that a breach of trust has taken place.

Dancey has posted a blog where he talks more about his current attempts to save the Open Gaming License.

Unfortunately, the leadership team at Wizards of the Coast has decided to unlawfully and in bad faith attempt to deauthorize v1.0a of the OGL. In mid-December 2022 they met with various parties who use the OGL and attempted to strong-arm them into signing onto a new OGL that repudiates the philosophy of Open Gaming that is embodied in v1.0a. The draft license that they attempted to force onto the community included onerous provisions that shifted control of the content created out of the commons shared by all participants equally and into a legal space controlled solely by Wizards of the Coast. Their new license was not, in any sense, an “open gaming license”.

The leverage that the company believed it had was their perception that they had the right to deauthorize and revoke the v1.0a version of the license. They do not. Attempting to do so will result in difficult litigation which ultimately poses a risk to Wizards of the Coast’s fundamental conception of what it can copyright and protect with US intellectual property rights laws.
 
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Russ Morrissey

Russ Morrissey

The real question seems to be what the judge will think. Will the judge weigh more in on the side of "When it was written it meant" or "Right now it is excepted to mean" and of course a GOOD judge would listen to both sides and rule based on there arguments, and we don't know who will make the more persuasive argument.
Well, at least the Supreme Court right now leans originalist, so "What it meant when it was written" is likely to prevail.
 

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Charlaquin

Goblin Queen (She/Her/Hers)
I'd love to believe that, but the law is never truly settled. That's both the benefit and the problem with common law: lawyers can always find some new angle to argue, and a new precedent can suddenly change what is and isn't allowed. Look at Disney. There's a perpetual battle by their legal team to extend the copyright on Mickey Mouse, even though by law it's expired several times. (I understand that's a very different issue, just illustrating how mercurial the law can be, especially when it impacts corporate interests).

My question is, does it matter? Let's say Hasbro walks back everything and recommits to OGL 1.0a. Does everything go back to normal? My guess is no. The industry understands now that they've all been working in the shadow of an existential threat. I'd like to believe we can build some sort of legal Maginot Line to stop this sort of thing from ever happening again, but I don't think it's possible. The OGL, in any form, has been proven by the whims of Hasbro executives to be the sword of Damocles. I'm very sure that ORC will become the new industry standard, and the marching order for every 3PP now is to disentangle themselves from anything OGL as quickly as possible.

Prediction #2, since I'm prognosticating, is that this will prove a watershed moment. The end result will be that TTRPGs are dominated by a few truly open source core rulesets. WOTC will be just one publisher of many contributing material compatible with these open source mechanics and they'll have no power or advantage or control over anyone else. Sort of like how no one owns the patent on the internal combustion engine. It creates a truly competitive industry where various auto manufacturers compete to offer the best vehicle at any given price point, each with its own features and benefits, but always developing and improving. I can very much see the TTRPG industry heading in that direction, starting now. Or starting a few days ago, more specifically.
I think prediction 2 may be overly optimistic. I’d certainly love for it to come true, but if I were a betting woman I wouldn’t put money on it.
 

Thanks for posting this topic on the front page. I know it's one of, if not the, biggest issues with what WotC is doing, but a lot of people didn't pick up on that, so a highly visible targeted topic was well needed.
 

Well, at least the Supreme Court right now leans originalist, so "What it meant when it was written" is likely to prevail.
I can't imagine anyone having the money to fight this to the SUpreme court, or that if both sides DID have the money and will to do so they would take such a laughable case... can you imagine the court asking about D&D and pathfinder?
 

wellis

Explorer
I can't imagine anyone having the money to fight this to the SUpreme court, or that if both sides DID have the money and will to do so they would take such a laughable case... can you imagine the court asking about D&D and pathfinder?
Considering it's a court case about a business contract essentially, that's not as silly as it might sound.
 
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Abstruse

Legend
Considering it's a court case about a business contract essentially, that's not as silly as it might sound.
Precisely this. And if a lawsuit over the OGL does go to court, I would not be surprised to see a lot of heavy hitters from the software industry filing amicus briefs and otherwise getting involved simply because such a case would become a precedent in the future that would affect the open licenses common in software development.
 

I can't imagine anyone having the money to fight this to the SUpreme court, or that if both sides DID have the money and will to do so they would take such a laughable case... can you imagine the court asking about D&D and pathfinder?
It's about an open-source license being able to be voided because it didn't have the word "irrevocable" in it, because it was written years before "irrevocable" was commonly used in the wording of these licenses.

D&D and Pathfinder? That's small time compared to the implication of the suit as precedent. The OGL has very similar wording to the GPL 2.0 (which it was largely based on), which is a license from the same era that has a lot of old code licensed under it. . .including portions of the Linux kernel.

The Linux kernel is a key part of computing infrastructure used in all sorts of applications for most non-Windows computing roles. For example, the Android mobile OS uses the Linux kernel, so do most server OS's out there.

If a court ruled that the OGL could be unilaterally rescinded because it lacked the word "irrevocable", that hypothetically puts the software running the bulk of servers across the internet, and every single Android phone, in legal risk because the licensing for the code they use could be revoked if the right party wanted to do so for any reason.

Hypothetically, the case could be absolutely seismic in its legal implications way beyond D&D. . .and THAT's why SCOTUS might rule on it, the broader implications could be catastrophic for the entire tech industry.
 

macd21

Adventurer
The real question seems to be what the judge will think. Will the judge weigh more in on the side of "When it was written it meant" or "Right now it is excepted to mean" and of course a GOOD judge would listen to both sides and rule based on there arguments, and we don't know who will make the more persuasive argument.
A lot of that will come down to money. Each side will put legal experts up on the stand to argue for and against the license being irrevocable. Consider some of the arguments that we’ve seen online over the last week - there’d be those, plus god knows how many others, with references to previous case law etc. But those experts all cost money.

Ryan Dancey could probably be prevailed upon to stare the intent of the license, plus whatever other statements WotC made over the years. But WotC could probably find a few former employees who’d say the opposite. The more money you have, the stronger an argument you can make before the judge.

I think that WotC would be at a disadvantage - the OGL was clearly meant to be forever, and they have to overcome that reality. But it’s not a sure thing.
 

Umbran

Mod Squad
Staff member
So TL;DR -- Thought they had it covered, never thought WotC would be this evil?

Well, "They" are WotC - WotC has copyright on the license itself, and so only the company could update the license itself.

This is why some folks want an open license to be itself owned by someone who is not a publisher - so the mouse isn't guarding the cheese, so to speak.
 

kenmarable

Adventurer
Precisely this. And if a lawsuit over the OGL does go to court, I would not be surprised to see a lot of heavy hitters from the software industry filing amicus briefs and otherwise getting involved simply because such a case would become a precedent in the future that would affect the open licenses common in software development.
Yep! From my (limited and amateur) research on copyleft court cases, one of the biggest was over model railroad control software, I believe. Pretty sure it was just two individuals and it wound up with all sorts of the heavy hitters stepping in. So even if the immediate context is very niche, some extremely large corporations and organizations are very wary of bad precedents being set.
 

Abstruse

Legend
Yep! From my (limited and amateur) research on copyleft court cases, one of the biggest was over model railroad control software, I believe. Pretty sure it was just two individuals and it wound up with all sorts of the heavy hitters stepping in. So even if the immediate context is very niche, some extremely large corporations and organization are very wary of bad precedents being set.
The biggest fights going on right now over right-to-repair and corporate ability to use DRM technology and the DMCA law to prevent people from fixing products they themselves bought (not rented or leased but purchased themselves and own) are over John Deere tractors and McDonald's milkshake machines. The companies refuse to allow owners to repair the machines themselves even for basic things like oil changes for the former or clearing clogs for the latter but instead require expensive "certified technicians". Even small cases in niche interests can have major repercussions and the big players can and will take interest in them.
 

The Linux kernel is a key part of computing infrastructure used in all sorts of applications for most non-Windows computing roles. For example, the Android mobile OS uses the Linux kernel, so do most server OS's out there.
do you know the age of the average supreme court judge? I wonder what the average level of programing they can do...
 

do you know the age of the average supreme court judge? I wonder what the average level of programing they can do...
You DO realize that they read briefs on these issues that explain these things, and they don't just make rulings based on their own personal knowledge of issues, right?

The number of amicus curae briefs that would be filed by tech firms over a lawsuit around the OGL at SCOTUS would be stunning, and would explain in great detail all the technical aspects, and how ruling against the OGL being irrevocable could do irreparable harm to the entire tech sector.
 

You DO realize that they read briefs on these issues that explain these things, and they don't just make rulings based on their own personal knowledge of issues, right?
yes but I also realize they take or don't take on a whim
The number of amicus curae briefs that would be filed by tech firms over a lawsuit around the OGL at SCOTUS would be stunning, and would explain in great detail all the technical aspects, and how ruling against the OGL being irrevocable could do irreparable harm to the entire tech sector.
or not... you don;t know any more then anyoe else...
 

Vaalingrade

Legend
Well, "They" are WotC - WotC has copyright on the license itself, and so only the company could update the license itself.
Kind of a ship of Theseus deal.

The WotC that created the OGL doesn't have the same goals, motivations or people as the WotC that's currently cosplaying as Sideshow Bob in a parking lot full of rakes. Never underestimate the power of time marching on and incoming executives meeting with shareholders.
 

I can't imagine anyone having the money to fight this to the SUpreme court, or that if both sides DID have the money and will to do so they would take such a laughable case... can you imagine the court asking about D&D and pathfinder?

For anything that requires funds, the modern era has produced the realm of crowd-sourcing.

For everything else, there's Mastercard.
 

see

Pedantic Grognard
So TL;DR -- Thought they had it covered, never thought WotC would be this evil?
No, we fully expected that Hasbro-owned WotC might turn evil in the future. After all, Hasbro was a big company, and its shareholders wouldn't give a fig for us. What we thought was that the OGL that came out of the discussions wasn't vulnerable to Hasbro turning evil.

To repost myself from a different thread, on the lack of the word "irrevocable":
As someone who participated both in the Netscape/Mozilla Public License discussions (on a Netscape-hosted news server) and the OGL discussions (on the OGF listserv), I can tell you the reason the OGL didn't have it is the same as the reason the NPL and MPL didn't have it -- nobody ever even suggested it was necessary.

I mean, seriously, if any of the lawyers -- and there were lawyers around, in both discussions -- had gone, "Hey, wait! Since you didn't specify it was 'irrevocable', it can be revoked at will! See [this case]!" everybody would have stopped right there and demanded that some sort of irrevocable-unless-breached language be added.

Note that the "gold standard" free software license in 2000, the GPL version 2, did not have the word "irrevocable". Nor did the releaseed-in-2002 (thus, after the OGL) original versions of the Creative Commons licenses. This was not on anyone's radar.

But, on the same theme, the original draft language of Section 9 let WotC update the license, but didn't contain the "any authorized version" provision. It was argued whether people could keep using the older version anyway in the face of a hostile update by Hasbro/WotC, and though some people said the way the law worked the older version would still be good, others thought the license language needed an explicit guarantee. So the "any authorized version" language was added to make sure that no matter what updates WotC did in the future, people could keep using the older versions of the license.

I grant we didn't anticipate that WotC/Hasbro would claim that very language allowed it to cancel older versions of the license, in defiance of why it was added.

EDIT: (By the way, despite my use of "we" above, I don't want anyone to be under the impression I was more than a lurker back then. Other people did all the serious debate and such. I might have offered an opinion a handful of times, but mostly I was just reading.)
 
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Erdric Dragin

Adventurer
Oh I think they knew that at some point in the future WotC could be that evil. They did everything they could to exclude the possibility that the OGL could be deauthorised. They didn’t just release the OGL with “perpetual” and clause 9 in it, they publicly stated that it was intended to be a forever license. And those statements will hurt WotC if this ever goes to court.

The problem was that they weren’t psychic, and couldn’t predict how legal language would evolve over time. They thought “perpetual” had them covered, but the term now has since been interpreted to have a specific legal meaning, one that the writers of the OGL didn’t intend.
That opens up a huge can of worms, though, for every court case in the country then. For someone to say,"Well, this word no longer means this legally even though it did 20 years ago" will set a very, very terrible precedent on all court cases. This is why "grandfather clauses" exist, to prevent such loopholes.
 

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