The OGL 1.1 is not an Open License

[Sorcerers Apprentice]

Bob has no standing as he voluntarily relinquished royalty rights. He suffers no damages by Jane paying a royalty to WotC due to high sales. What would he sue for? He is owed nothing since he explicitly designated the part Jane used as open game content. She must designate the open game content she used as from Bob, and any open game content created by Bob or Jane used by later authors is explicitly royalty free to future authors. That section specifically protects future authors from lawsuits by past authors.

There is no conflict.

Bob has not relinquished any rights. He has made his content available for redistribution under specific terms; that any further redistribution is made under the same terms that Bob offered, the OGL1.0.

Jane is not complying with Bob's terms, as she is redistributing under the more restrictive OGL1.1 license. Since Bob's OGL1.0 offer was the only thing that could give Jane permission to redistribute Bob's content, if Jane is not complying with that license she has no right to redistribute any of Bob's content and thus her product is illegally violating Bob's copyright.

 

[Baron Opal II]

Bob, through OGL v 1.0/1.0a, also obliges any future party to distribute all OGC royalty-free. But a party to the mooted OGL v 1.1 is violating that obligation.

This is the part that I disagree with. The only royalties that are surrendered are the author's. The royalties that WotC is demanding in the new license are orthogonal to the original agreement.

 

[kenada]

I was just rereading the d20 trademark licence, which incorporated the d20 system guide, which in turn precludes the production of "interactive game" software. The fact that an exclusion of that sort was expressly incorporated in that licence reinforces your plain-meaning reading of the OGL. I don't see how the OGL is supposed to not license the use of OGC in software contexts. (Though I'm prepared to accept that complying with the obligations to make OGC available to other licensees might impose certain restriction on how OGC is incorporated into software.)

History doesn’t support it either. I remember when PCGen had to relicense its datafiles under the OGL at the request of WotC. There was even a thread about it here. If the OGL were never meant for use with software, the PCGen developers would have had to remove the files completely.

 

[pemerton]

No, they absolutely cannot, under no circumstances ever

"the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license"

I mentioned that in the post you're replying to. That's an obligation that arises between WotC and any licensee. If you have not taken up the licence, though, then you have no legal rights against WotC, and they can retract the offer of the licence at any time.

no, the license does not allow for this

You seem to be treating the OGL as a statute. It's not. It's a private law offer made by WotC to potential licensees. Like all private law offers, it can be retracted at any time.

I'll ask: are you a contract lawyer who is making an argument that WotC is in some fashion bound not to retract their offer? In that case I'm very interested to hear the argument: there may be some extra context, particularly some element of US IP licensing law, that I'm ignorant of.

But as I'm reading your posts, you just seem to be confused between making an offer and entering into a licence agreement. The latter imposes private law obligations; the former doesn't (leaving aside subtleties like estoppel etc), unless the offer is accepted thus creating an agreement, and can be withdrawn at any time.

They cannot stop making the offer either, they offered it once and they have no way of going back on that, unless they come up with time travel. Once something has been released, it stays released.

This is not a license both sides need to agree to, so WotC has no way of preventing anyone in the future from using that license for the stuff they published under it.

None of this makes sense to me. Of course both sides need to agree to establish the contract. The OGL v 1.0/1.0a even has express sections dealing with offer and acceptance and explaining what the consideration is that flows in each direction (sections 3 and 4).

WotC don't need time travel to withdraw their offer to me to license my use of the 5e SRD. All they need to do is, here and now, withdraw the offer. Given that I have not entered into any licence agreement with WotC (I have never distributed any OGC under the terms of the OGL), I have no legal rights against WotC.

If WotC were to withdraw the offer, and then in the future I wanted to use OGC under the OGL, I would have to enter into a licence agreement with someone else who is still making the offer. Which would be anyone who has entered into the OGL with WotC or any 3PP, and is obliged to make a standing offer (unless all those who they have contracted with were to release them from that obligation).

This is why, as I said in my reply to @FrogReaver, there is no practical reason for WotC to withdraw their offer in respect of the 5e SRD.

 

[pemerton]

This is the part that I disagree with. The only royalties that are surrendered are the author's. The royalties that WotC is demanding in the new license are orthogonal to the original agreement.

I assume that the bolded bit is a description of the effect of the OGL v 1.0/1.0a.

In that case, section 4 seems the relevant provision:

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.[/indent[​

But (on the assumption I stated upthread about how the OGL 1.1 would work), if Jane uses the OGL v 1.1 to distribute OGC contributed by Bob, then Jane is obliging downstream users to pay royalties to WotC for their use of Bob's OGC. Which is not a licence "with the exact terms" of the OGL v 1.0/1.0a.

 

[mamba]

I mentioned that in the post you're replying to. That's an obligation that arises between WotC and any licensee. If you have not taken up the licence, though, then you have no legal rights against WotC, and they can retract the offer of the licence at any time.

not sure how much clearer I can make it than the last time

They cannot retract it, that is simply impossible. The offer is out there and anyone can take them up on it at any point in time, WotC does not need to agree to it. They published it 10 years or so ago and it will be available forever. Nothing WotC does can change that.

None of this makes sense to me. Of course both sides need to agree to establish the contract. The OGL v 1.0/1.0a even has express sections dealing with offer and acceptance and explaining what the consideration is that flows in each direction (sections 3 and 4).

WotC already pre-agreed by offering this license, the only agreement still needed at this point is that of the licensee. There is no contract signed between WotC and you, you simply use their SRD and are thereby bound by the terms of the OGL.

 

[darjr]

I dint think WotC is going to touch the OGL 1.

But for arguments sake what if they tried? What would Joe 3rd party dev do?

Class action?

Even if it’s a slam dunk for 3rd parties and wins in court winning might not matter.

Could they pour enough cold water on it to essentially stop it’s use?

I’m not sure.

 

[S'mon]

I still don't see how WotC, in making a new offer of a licence to use their revised SRD under certain terms, can be bound by section 9 of an old offer.

But are you able to tell us anything sensible about the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL? That's what I'm curious about, but don't know enough to work out for myself.

If they call it OGL 1.1 they appear to be choosing to bind themselves to section 9 in OGL 1.0. They can choose not to do this by not calling their new licence 'OGL 1.1". Calling it OGL 1.1 is a choice.

"the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL?" I'm not sure what the issue is here. The content of the 5e SRD is licenced under the OGL 1.0. A publisher should not refer to a revised SRD if using it. It's not relevant.

What a publisher can do is what they did before the 5e SRD appeared, like using the 3e SRD and some rule words from 5e such as "Advantage". They can use the 1.0 OGL, the 5e SRD, and if necessary some new rule word that appears in 6e/ONE. I doubt that will be necessary though.

 

[pemerton]

They cannot retract it, that is simply impossible. The offer is out there and anyone can take them up on it at any point in time, WotC does not need to agree to it. They published it 10 years or so ago and it will be available forever. Nothing WotC does can change that.

You haven't told me what your reason is for this claim.

In every other domain of commercial life, offers that have not crystallised into obligations can be retracted. Why do you think WotC's offer to license the 5e SRD under the OGL v 1.0a is different?

There is no contract signed between WotC and you, you simply use their SRD and are thereby bound by the terms of the OGL.

You've just described the contract that you have said doesn't exist!

 

[pemerton]

If they call it OGL 1.1 they appear to be choosing to bind themselves to section 9 in OGL 1.0. They can choose not to do this by not calling their new licence 'OGL 1.1". Calling it OGL 1.1 is a choice.

Is the idea that section 9 of the OGL 1.0 would be incorporated, by reference, into the new licence?

"the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL?" I'm not sure what the issue is here. The content of the 5e SRD is licenced under the OGL 1.0. A publisher should not refer to a revised SRD if using it. It's not relevant.

What I've got in mind is that material found in a revised SRD (say, a new way of describing Elves) might be (in some fashion) derivative of material found in the 5e SRD (say, the existing way of describing Elves) and hence be something that the existing licence permits an existing licensee to use as OGC.

I think this is how Paizo is using 3.5 SRD material in books published which refer only to the 3.0 SRD in their OGL section 15. They are not relying on a licence in respect of the 3.5 SRD. They are relying on a licence in respect of the 3.0 SRD together with the fact that material in the later SRD is OGC under the terms of the licence granted in respect of the earlier SRD (because of its derivative character). At least, that's my understanding within the limits of my grasp of the legal details.