The OGL 1.1 is not an Open License

[GMforPowergamers]

If wotcs goal was to spread fear, uncertainty, and doubt then I think this thread goes some way showing they’ve done so.

TBH if Hasbro or WotC wanted to stop 3rd party publishers that is the tactic they SHOULD take. Make it so confusing and hard and scary that only the largest of companies with lawyer's on staff would dare... I am nto saying they will but I will say that it would make a tactical sense. You can't legally stop the OGL, but you can make it harder to use.

 

[S'mon]

@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:



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?

I think the clause is just there to make it clear they're not giving the SRD to the public domain, and you need to stick with the licence to use it.

On the second point, I don't know, there seems a fair argument either way. If I were the judge I'd probably rule that by choosing to label the new licence OGL 1.1, and releasing the new SRD under that, the terms of OGL 1.0 apply to the new SRD material too, by the wording of section 9. Since they chose to make it another iteration of the OGL, the terms of OGL 1.0 continue to apply. A decision could go either way afaics, but that's the intent of the OGL 1.0.

 

[Art Waring]

"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners." - Ryan Dancey, Nov 23, 2010.

Thank you for posting this, great quote from Ryan Dancey.

 

[robconley]

I don’t think you can release the software as eg GPL and thereby cover your OGL obligations.

You are correct. It would still take some thought and design work to make sure anything dependent on the open content uses the OGL license. My point is that it would less risk to have everything as open content than have a closed source software referencing data files released under the OGL. For one thing, Wizards or another IP right holder that released open content can see what is and isn't dependent on the open content.

 

[S'mon]

Let us be clear : I MADE NO SUCH ASSERTION. I do not understand where you got the idea that I did.

In fact, I asserted that WotC cannot withdraw their offer of a contract (admittedly, I used flowery language, my apologies). The Carlill case you are citing works against you, because it is an example of an offer that could not be withdrawn!



There is no mechanism for doing that. Indeed, the Carlill case you site is one in which the company could not retract an offer they'd made - so clearly you know this is possible.



Please educate me. What in Carlill is evidence that WotC can withdraw its offer? Because, as it stands, the case isn an example of the opposite.



That's generally true. But one can construct exceptions, and the stated intent in this instance was to do precisely that.

"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners." - Ryan Dancey, Nov 23, 2010.



There is no mechanism for doing so, because the offer and acceptance terms are contained within the license itself, which explicitly cannot be modified. Thus, once extended, the offer cannot be withdrawn. As above, this was intentional.



Again, the license contains its own offer and acceptance terms, and explicitly contains language that it may not be modified. In addition, there is no physical way for WotC to modify it - they cannot reach into other people's documents and alter them to remove the offer from the license.

Make no mistake, releasing things under the OGL is risky precisely because the licensor can't stop it once they've done so. The OGL is in many ways just a step or so off from just making the thing public domain.



Again - In Carlill, it was found that the offer was binding and enforceable, and the company could not withdraw. So, I fail to see how that argues against my point. Carlill establishes that unilateral, open ended offers are a thing.

Carlill didn't address whether a unilateral offer could be withdrawn prior to completion of performance by the accepting party. Later jurisprudence indicates a unilateral offer cannot be withdrawn once performance has started, prior to completion.

It doesn't matter anyway. You can no longer license use of the 3.5 SRD direct from WoTC, but you can license it from eg The Hypertext d20 SRD (v3.5 d20 System Reference Document) :: d20srd.org
It does not matter that you cannot contract with WoTC to license the 3.5 SRD; they effectively released it into the wild. Pemerton is right about offer/acceptance and offers being revocable, but so are most of the people arguing with him about the license being irrevocable; they're just arguing past each other. I mostly blame Pemerton as he is a lawyer and should know better.

 

[robconley]

If wotcs goal was to spread fear, uncertainty, and doubt then I think this thread goes some way showing they’ve done so.

To cut Wizards a very very small amount of slack, there has always been a sizable minority of the hobby that are anti-OGL for various reasons. And a much larger group who just want to get on with the gaming and wished that things were more straightforward.

And my point of view is that it would be easy to make it more straightforward, just make anything system-related open content. And if the author feels like it throws in the setting as well if it is their own original work*.



Anything I produce that 100% my own work like Blackmarsh, the Majestic Fantasy Realms, the Majestic Fantasy RPG is 100% open content. I plan to the same thing with Scourge of the Demon 2nd edition (I am replacing the Wilderlands based setting inside with one based on the Majestic Fantasy Realms) making it 100% open content, maps and all.

*And yes I know how unrealistic this is but doesn't stop me from trying to advocate for that goal. I also strongly feel it should be up to the author whether to participate in making open content or not. If they don't, I respect that choice despite my position on open content.

 

[S'mon]

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.

Pemerton would agree with your last point, which is of course the point that matters.

Pemerton is an Australian lawyer and he does know what he's talking about, it's just that the technical point he's been making about offer/acceptance in contract is basically irrelevant to the important point - your bolded text - and even misleading to some people.

 

[mamba]

Pemerton would agree with your last point, which is of course the point that matters.

Yeah, that probably is his stance, it’s just that this also applies to the license itself, not just the material under it for those that agreed to it while it was available. He is wrong about that part

 

[Dausuul]

I don’t think you can release the software as eg GPL and thereby cover your OGL obligations.

The OGL affects your software design because it is not enough to have the material in the source code and that code available to everyone (via the GPL).

“Distributing the source code not an acceptable method of compliance.”

As I read it, the reason this fails as a method of compliance is that the source code may not -- and in most cases would not -- contain the actual Open Gaming Content, i.e., the text of the rules. If I create my own encounter builder because I'm unimpressed with DDB's version, the source code of my app wouldn't typically contain the statblock of a red dragon. That would be stored in a database. The source code assumes the existence of such a database, and merely tells the computer how to take its contents and assemble them into encounters of suitable difficulty to achieve your target percentage of dead PCs.

However, if I were to incorporate the statblocks into the code in a human-readable format, and put them in their own directory along with a file containing the text of the OGL and saying "Everything in this directory is OGC," I would then meet the requirement that "you have to give all the recipients the right to extract and use any Open Game Content you've included in your application, and you have to clearly identify what part of the software is Open Game Content."

Edited to add: I think I would also have to be quite careful about using some other open source license, like the MIT license, with my code. The OGL does not allow for modifications, so if I put all of my source code under the MIT license, I would be violating the conditions of the OGL. I'd have to say something like, "The contents of the /ogc directory are released under the OGL, everything else is under MIT."

 

[Alzrius]

I think the clause is just there to make it clear they're not giving the SRD to the public domain, and you need to stick with the licence to use it.

For what it's worth, I privately spoke about that with an IP attorney I know through work, and he came to a very similar conclusion.