The OGL 1.1 is not an Open License

[FrogReaver]

Well it is OGL 1.0 but from my understanding of @pemerton's argument. If @permerton decides to distribute some derived work based on Dan's distribution of the SRD then his licence derives from Dan not from WoTC. He as no contractual connection to WoTC. Not sure if he as one with Dan.

@pemerton is saying that he would have no license in this situation. But I think you are right to focus on distribution and production of the SRD 5.1 because fair use doesn’t include either of those.

My contention is
1). Open licenses are meant to ensure the product can continue to be produced, worked on, and distributed even if the owner wishes to “close up the product”. In software terms this would cause a fork where the owner closes his line and the open source community continues to be able to work from the non-closed version.

Wotc’s OGL was structured similar to these software licenses and for the same purpose.

2a). The OGL 1.0 requires the license to be reproduced when distributing OGC.

2b). The license itself provides the offer from Wotc to use OGC content under the OGL 1.0.

Thus, Wotc has made an offer they don’t have the means to rescind. *That is provided WOTC doesn’t track down and destroy all 5.1 SRD’s under the OGL 1.0.

In our case @penerton would have the ability to produce and distribute the 5.1 SRD provided he met all terms in the OGL 1.0 license that was attached to it, because he would then be a valid licensee of that content.

 

[robconley]

The OGL reads like a contract to me. It has provisions dealing with offer, acceptance and consideration, which are basic concepts in the common law of contract.

A licence to occupy premises is a species of contract. So is a licence to use someone else's copyrighted material.

Given that you apparently don't trust me, perhaps you'll trust wikipedia:

A license is granted by a party (licensor) to another party (licensee) as an element of an agreement between those parties. In the case of a license issued by a government, the license is obtained by applying for it. In the case of a private party, it is by a specific agreement, usually in writing (such as a lease or other contract).​

Of course gratuitous licences can be given - I can invite you into my home - but gratuitous licences can be withdrawn at will - I can ask you to leave my home at any time.

The OGL is not a gratuitous licence. It is a contract, as it makes clear on its face.

Everyone knows this. But making an offer to enter into a licence is not the same as entering into a licence. I could, today, declare that I licence the Pemerton SRD under the OGL 1.0 to any and all takers. And then, tomorrow, I could withdraw that offer. Everyone who took up my offer in the intervening period would have rights under the licence. But once I withdrew the offer, no new licences could be created directly with me. Of course, under the terms of the OGL 1.0 sub-licences could be created with my licensors.

The OGL is attached to the text. What you and other don't get what happens after the initial release.

As the Wikipedia article you cite notes there are different kinds of licenses. The elements of a license for IP include the terms, and other limitations of the license. And as stated in Intellectual Property Licensing: Forms and Analysis, by Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler, a license is an authorization for use sparing the licensee from copyright infringement claims. It is not a contract.

So what happens is that I put out Blackmarsh, Wizards puts out the D20 SRD. Attached to the text of both (and the map in my case) is a license AUTHORIZING you and other folks to share and modify the content as long as certain conditions are met. The term is perpetual.

Ten years from now, when a person gets a copy of Blackmarsh all person sees is the text and the license with a perpetual term. And because the person was authorized by me (and Wizards in the case of the D20 SRD) to share the material and because the person followed the requirements, then the person who just received Blackmarsh or the D20 SRD has no reason to think that they were also authorized to freely share and modify the content as well.

Moreso because of cases like Carlill v Carbolic Smoke Ball Co, courts in United States are far more likely to rule in favor of the licensee rather than the licensor.

This is why I advised people who ask me about sharing stuff of open content to make sure that is what you really want to do. As the permission/authorization, you give is for the rest of the work's copyright term. Afterwhich it becomes public domain and doesn't matter anymore.

Because it's still a leading case about offer and acceptance in the context of offers made to all the world. When @Umbran and others say there is no contract with WotC because (eg) there is no exchange of documents between the parties, they demonstrate their lack of familiarity with Carlill and similar cases.

In a nutshell, while I developed a good understanding of the issues involved during the 90s by following, creating, and using open source software. My commentary for the past 13 years has been informed by the advice of the IP attorney I retained starting when I secured the license to use the Wilderlands IP from Judges Guild. As part of the review, the OGL came up, so we reviewed that as well. While he didn't quite get why I didn't want to secure maximum protection for my IP, he understood the implication of the OGL. As a result, we talked about the difference between IP licenses and contracts.

To wrap it this up. If you download Blackmarsh from any source even ones that I was not involved with. You will find inside two licenses that you can use for the text and the map. Those licenses are an authorization from me to use the material under certain conditions. I am not offering you anything, I am giving permission (or authorization) to for you to freely share and modify the material.

In forty years I will be dead and my heirs will have control of my copyright. Yet that authorization will remain valid because I deliberately chose assign a perpetual term to this authorization. Ninety-five years after my death it won't matter because that when it become public domain.

And folks need to realize that this was brought up in the early 2000's and this whole "the OGL is a contract" was debunked. We are now over twenty years in with thousands using the OGL successfully in their products. Not just Wizards' open content but open content from hundreds of other publishers as well.

 

[robconley]

Wotc’s OGL was structured similar to these software licenses and for the same purpose.

And to note some of those licenses whose clauses were adapted by the OGL were tested in courts and upheld.

 

[mamba]

He's technically correct, it's just he's writing as a lawyer so it looks nonsensical to a layman.

No, he is absolute wrong, he just writes like a lawyer and might trick you into thinking that means he knows what he is talking about.
His main problem is that he treats an open license like a contract negotiation when it is not. Any argument and conclusion he makes falls apart because of that.

The WotC license and the material released under it will remain available indefinitely. WotC cannot withdraw it again.

 

[FrogReaver]

No, he is absolute wrong, he just writes like a lawyer and might trick in thinking that means he knows what he is talking about.

The WotC license and the material released under it will remain available indefinitely. WotC cannot withdraw it again.

Well if they could round up every copy in existence and destroy them they could. Not realistic but it’s possible! Lol.

 

[Alzrius]

@S'mon I'm curious to get your take on the clause posted at the beginning of the 5.1 SRD which says the following:

Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.1 (“SRD5”) is granted solely through the use of the Open Gaming License, Version 1.0a.

Given that I don't think WotC was worried about someone distributing the 5.1 SRD via the OGL v1.0, as opposed to v1.0a, what do you think is the intended purpose of this notice? Moreover, if the 1D&D SRD uses the same disclaimer, but in reference to the OGL v1.1 (and, obviously, referring to itself rather than the 5.1 SRD), would that disallow the OGL v1.0a's Section 9 from being a basis to use said 1D&D SRD in a v1.0a publication?

 

[mamba]

If I were WoTC I'd argue that the ONE D&D SRD was derived from the ONE D&D non-OGC rule books, not from the 5e SRD. So not a derivative work of the 5e SRD.

yeah, have fun arguing that. I doubt this stands a chance, but as always there is a slight chance you find a moron judge who gets it all wrong

 

[mamba]

Well if they could round up every copy in existence and destroy them they could. Not realistic but it’s possible! Lol.

Yeah, same with my proposal of them inventing time travel and retroactively never releasing anything under it that way. I’d rather stick to what is highly plausible

 

[mamba]

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

monster names? yes, usually they are not. Some are trademarked however, so you cannot use eg a beholder and it is not in the SRD

 

[mamba]

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.

try that with something like song lyrics and see how far you get…