The OGL 1.1 is not an Open License

[S'mon]

If WotC releases a revised SRD which contains X from the old SRD plus new Y; and then someone publishing under the OGL v 1.0a publishes a work that includes some of Y; that publisher might want to argue that Y is derivative of the old SRD and hence that they are not infringing, because licensed under the OGL v 1.0a.

I don't think that would work so I would advise the publisher not to include Y, to the extent Y is copyright protected material. Usually OGL publishers don't include big chunks of SRD anyway, they just want to be able to reference stuff like monster names & magic items.

 

[pemerton]

Usually OGL publishers don't include big chunks of SRD anyway, they just want to be able to reference stuff like monster names & magic items.

Which are generally not copyright protected? (I'm assuming here they're divorced from a broader plot/story context.)

 

[S'mon]

I hadn't thought of that. Does derivation depend on intent, or stipulation, or history, or material resemblance?

(EDIT: This question pretty much supersedes my post 248 just upthread.)

I like to think of copyright as a river flowing downhill. You aren't deriving from your OGC SRD just because the words are the same. You can go upstream from the OGC SRD to the original non-OGC source and take your material from there.

 

[S'mon]

Which are generally not copyright protected? (I'm assuming here they're divorced from a broader plot/story context.)

True they are generally not copyright protected, but to be safe people use the OGL anyway.

 

[S'mon]

I hadn't thought of that. Does derivation depend on intent, or stipulation, or history, or material resemblance?

Copying, including derivation, is a question of fact. You copy from a specific source. A third party OGL publisher using WoTC OGC has to copy from WotC's SRD - if they copy direct from (eg) the 5e PHB they are infringing copyright. It doesn't matter if the words are the same.

Copying requires both (a) substantial material resemblance and (b) actual copying from that actual source.

This was discussed in depth in Francis Day and Hunter vs Sydney Bron

Francis Day and Hunter vs Sydney Bron

www.lostinmusic.org

 

[pemerton]

@S'mon, I think you've cleared up most of the issues. Thank you!

WotC could release a revised SRD, which they copy/derive from their one-D&D books, and which therefore is not within the scope of existing licences granted under the OGL 1.0a in respect of the current 5e SRD.

And a putative new licence could then create a new "ecosystem" for OGC, based on this new SRD and with upward-flowing royalty obligations.

I think mixing and matching would then become complicated because of the challenge of satisfying the obligations in the OGL 1.0a while dealing with the new class of material. (I know you haven't said yes or no this particular point.)

There is the possible argument around section 9 of the OGL v 1.0a. I find the idea of incorporation of that by a type of implicit reference somewhat unlikely, but I don't think I can defend my intuition in this respect.

 

[S'mon]

@S'mon, I think you've cleared up most of the issues. Thank you!

WotC could release a revised SRD, which they copy/derive from their one-D&D books, and which therefore is not within the scope of existing licences granted under the OGL 1.0a in respect of the current 5e SRD.

And a putative new licence could then create a new "ecosystem" for OGC, based on this new SRD and with upward-flowing royalty obligations.

I think mixing and matching would then become complicated because of the challenge of satisfying the obligations in the OGL 1.0a while dealing with the new class of material. (I know you haven't said yes or no this particular point.)

There is the possible argument around section 9 of the OGL v 1.0a. I find the idea of incorporation of that by a type of implicit reference somewhat unlikely, but I don't think I can defend my intuition in this respect.

Yes.

As I've said, WoTC can safely create a new ecosystem divorced from the OGL 1.0 by not referring to their new licence as "OGL 1.x". I think they would be unwise to press on with calling the new licence OGL 1.1 while making the terms significantly less attractive than the OGL 1.0.

If I were advising 3PPs, I'd recommend being wary of the new OGL and look carefully at what it offers that sticking with the old OGL and old SRDs does not.

If I were advising WoTC I'd advise them to create a new non-OGL licence that gives some nice incentives in return for the reporting & royalty requirements. Access to D&D Beyond and the new VTT would be obvious incentives. Otherwise no one will sign up, and you'll get a 4e GSL situation again.

 

[pemerton]

If I were advising WoTC I'd advise them to create a new non-OGL licence that gives some nice incentives in return for the reporting & royalty requirements. Access to D&D Beyond and the new VTT would be obvious incentives. Otherwise no one will sign up, and you'll get a 4e GSL situation again.

The "carrot" in that case was supposed to be access to the trade dress templates etc. It's interesting to speculate about why it flopped - I mean there's obviously the whole PF thing, but nevertheless 4e had plenty of players for a number of years and yet there seems to have been almost no 3PP take-up.

One seemingly obvious reason: for many 4e players their engagement with those templates was via WotC's online tools, which 3PPs couldn't get into.

Another possible reason: WotC was producing so much 4e content that there was no "vacuum" for 3PPS to fill.

Obviously those two reasons can work together, each compounding the effect of the other.

So access to online tools seems like a pretty crucial thing. A licence that forbids 3PPs from creating their own online tools - as has been mooted - seems like it is aimed at reinforcing the centrality of WotC's tools. That may not be ideal from the 3PP perspective, but it's not an obviously bad things for the play community to have a single provider around which to coordinate. (And yes, there's another reflection on the perils of private orderings!)

 

[GMforPowergamers]

yeah, do not really agree with that I am not seeing your argument preventing Paizo or the OSR. That's like saying you rather make zero money by not competing than possibly have to give some fee to WotC for using their SRD as a starting point, if you end up being hugely successful.

Same as OGL 1.0a according to WotC, 1.1 just is clearer about this

if this was the way things worked back in 2000 then it might have saved 4e... since WotC would not have paizo as a competitor but as a partner paying them.

 

[FrogReaver]

Correct. But I have no licence from WotC to use their material, as I have not entered into any agreement with them.

To be more precise about that, I have not taken any steps under section 3 of the OGL v 1.0/1.0a - "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."

WotC is under no obligation to continue to make that offer to me. They could withdraw it at any time. To qualify a bit what @kenada posted, they could continue to make the SRD available on their website (so that interested people could read it, make fair use of it, etc) but could declare henceforth that they will not enter into any further licence agreements in respect of it.

That would not change the rights of any existing party to the OGL v 1.0/1.0a, including that party's right to distribute the OGC to further parties (like me). But it would mean that I couldn't enter into a licence agreement directly with WotC. In practical terms, this would be relevant for my Section 15 copyright notice.

Let’s say Wotc does as you say (I don’t think they can) and Dan distributes the 5.1 SRD under OGC 1.0 to you. What license do you, Pemerton, have to keep and use the copyrighted material?