OGL The OGL 1.1 is not an Open License

FrogReaver

As long as i get to be the frog
Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1. Which is based on a subset of income which, despite your protestation to the contrary, is not a subset that you need to care about for any other purpose (including OGL 1.0A). Could well be on a separate reporting period too.
It could be but presumably the easiest route would be by calendar year of the sales, which I’m certain the digital platforms track. There’s no clear reason why Wotc would want the reporting period to be different in any way.
 

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Alzrius

The EN World kitten
It doesn't matter how you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.
No, they're not equally forbidden; the latter isn't forbidden at all. Section 2 says you can't alter the OGL v1.0a by adding new terms to it; it doesn't prevent you from creating a new license altogether.

For instance, Section 2 was in the OGL v1.0; nothing about it stopped WotC from then creating and releasing the OGL v1.0a, which has (very slightly) different terms from the previous license. And yet that wasn't a Section 2 violation.
 

Alzrius

The EN World kitten
That said, it appears the citation is to Shannon Appelcline's book, which I have not read, but I'd expect it to be accurate. Someone must have told him this.
Presuming I'm reading the citation right, it refers to this passage from Appelcline's Designers & Dragons: The '90s (pg. 172):

Wizards got to enjoy great new sales of the sort that RPG companies typically see when they revamp their core books. However, the effect on the d20 market was disastrous. Third-party publishers had very little warning of the update, and so some books were out-of-date as soon as they were published. Worse, Wizards didn’t offer any particular update for the d20 trademark, and third-parties were left to their own methods to tell readers that their books were intended for 3.5, not 3.0.

Lots of 3.0 books sat on shelves. Meanwhile, consumers became more careful in making their 3.5 purchases, as they were simultaneously being forced to repurchase many of their core books from Wizards. This caused a cascade effect, and probably contributed to the downfall of consolidation companies like Wizard’s Attic, Fast Forward Entertainment, and Osseum — who in turn took more gaming companies with them when they went down. It also poisoned the d20 trademark: retailers began to see it as a liability, therefore it became a liability for publishers.

The result couldn’t have been worse for Wizards. Though many d20 publishers died and many others like AEG and Fantasy Flight left the field, most of the ones who remained abandoned the d20 trademark entirely, publishing instead under the OGL. This meant that Wizards no longer had any control over them. It also helped publishers to realize that they could publish d20 games that did not depend upon Wizards of the Coast’s core books without losing their audience. Mongoose’s Babylon 5 is an example of a game that went from a d20 first edition (2003) to an OGL second edition (2006).

Even worse, some publishers began to create direct competitors to D&D using the OGL. One of the most notable is Troll Lord’s Castles & Crusades (2004), which pointed the way for the whole retroclone movement. More recently, Paizo Publishing’s OGL-based Pathfinder (2008, 2009) pretty much took over the 3.5 market after Wizards moved on — as we’ll discuss shortly.
 

Presuming I'm reading the citation right, it refers to this passage from Appelcline's Designers & Dragons: The '90s (pg. 172):

Thank you! This matches my recollections for the most part (although FFG didn’t actually “leave the field” until ~2006). In any case, it was 3.5 what done it—nothing with the OGL or d20STL.

So…poor reading comprehension or disingenuous citation? You make the call!
 

glass

(he, him)
It could be but presumably the easiest route would be by calendar year of the sales, which I’m certain the digital platforms track. There’s no clear reason why Wotc would want the reporting period to be different in any way.
Which, if true, proves my point. Calendar year != tax year.

No, they're not equally forbidden; the latter isn't forbidden at all. Section 2 says you can't alter the OGL v1.0a by adding new terms to it; it doesn't prevent you from creating a new license altogether.
Nothing prevents you creating a new licence. But you cannot use that new licence to release (other people's) OGC, because that would be adding restrictions (or removing them, which you cannot do either).

For instance, Section 2 was in the OGL v1.0; nothing about it stopped WotC from then creating and releasing the OGL v1.0a, which has (very slightly) different terms from the previous license. And yet that wasn't a Section 2 violation.
It neither added nor removed any restrictions AFAICS.
 

Alzrius

The EN World kitten
Nothing prevents you creating a new licence. But you cannot use that new licence to release (other people's) OGC, because that would be adding restrictions (or removing them, which you cannot do either).
Again, that's not correct. You can release any Open Game Content released under any version of the Open Game License under any other version of the Open Game License, as per Section 9. The Section 2 prohibition on new restrictions prevents you from changing whichever version of the License you're publishing your Open Game Content under. So your OGL v1.0a has to read exactly the same as everyone else's OGL v1.0a (save for the Section 15 declarations). But if WotC wants to release a new iteration of the OGL, with different terms, they can, and presuming it doesn't go out of its way to prevent using Open Game Content published under it with earlier versions of the license, they can otherwise change it however they want, and it won't be a Section 2 violation.
It neither added nor removed any restrictions AFAICS.
That's not correct, as I've noted elsewhere. The OGL v1.0 Section 7 says the following (emphasis mine):
7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

While the OGL v1.0a Section 7 says the following (again, emphasis mine):
7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

That's an additional restriction, since trademarks and registered trademarks are different (and even have different symbols, the former being a delineated by a superscript TM while the latter is an R in a circle). Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that. Which means that yes, the OGL v1.0 didn't restrict you from indicating compatibility with registered trademarks, while the OGL v1.0a does. And yet there's clearly no Section 2 violation going on.
 
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see

Pedantic Grognard
It doesn't matter how you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.
The biggest problem with your interpretation here is that the standard legal rule that contracts should not be interpreted in a way that renders any of the provisions superfluous or meaningless. The sentence immediately prior to the one you're hanging your interpretation on says "No terms may be added to or subtracted from this License except as described by the License itself", which means terms can be added, if done the way the license describes. And then the way the license then describes to add or subtract terms is Section 9, the provision for updating the license.

You are trying to argue that no terms to the use of the content can be added at all based on a sentence immediately following one that explicitly says terms can be added to the license, and additionally that Section 9, if not an utter nullity, is in all substantive terms a nullity.

I mean, maybe a court will agree with you. I don't know for sure, I'm not a lawyer.

But to me, the obvious reading of "other terms and conditions" in the context of Section 2, that accords with the rest of Section 2 and with the existence of Section 9, is terms and conditions that are "other" in the sense they are outside the license itself. A random publisher cannot, say, add a notice to a product that says "The Open Game Content in this work can be used in accordance with the Open Game License 1.0a if and only if you first send us a billion dollars." and expect adherence. But someone taking OGC and using it in accordance with the OGL 1.1, well, that's using the content in accordance with the terms detailed in the OGL 1.0a, over in Section 9.

(Now, it's entirely possible that a court will rule that various possible WotC-favoring terms of a new authorized version of the OGL are invalid because they are unconscionable in a unilaterally-promulgated revision of a contract of adhesion. But that's an entirely different thing than trying to use one sentence of Section 2 to negate the OGL's own provisions for modifying the OGL.)
 

Hussar

Legend
Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1.
Why would you do it separately? You have to know your sales of each product for tax purposes. You know which titles use the OGL and which don't. You also know which fiscal year those sales occurred in. I'm really not seeing the issue here.

Additionally, you're talking about someone who is publishing both under the OGL and not. Is this a really common thing? I would have thought that most OGL users are using the OGL for their products.
 


Jadeite

Open Gaming Enthusiast
The current OGL already lets them do that. That's how it works -- the license goes both ways. You get to use WotCs OGC, they (and everybody else) get to use yours. To my knowledge they've never actually done that, though.
They've done so twice or thrice during 3rd Edition. Monster Manual II contained two creatures from Creature Collection (with changed names, but that was due to White Wolf's designation of product identity). Unearthed Arcana and the d20 Special Dragon Annual contained 3rd party OGC content (though I'm not quite sure if this was done specifically for that issue as no other products are mentioned in its license). But even Unearthed Arcana was nearly 20 years ago.
 

Alzrius

The EN World kitten
Unearthed Arcana and the d20 Special Dragon Annual contained 3rd party OGC content (though I'm not quite sure if this was done specifically for that issue as no other products are mentioned in its license). But even Unearthed Arcana was nearly 20 years ago.
Did those actually reprint any existing Open Game Content, or did they simply introduce Open Game Content of their own?
 

glass

(he, him)
Again, that's not correct.
I think it is correct, obviously. And flat out telling me I am wrong does not get more persuasive with repetition.

That's an additional restriction, since trademarks and registered trademarks are different (and even have different symbols, the former being a delineated by a superscript TM while the latter is an R in a circle).
The article does not say what you say it says. The symbols are different, but the article you link does not say that registered trademarks are not trademarks. One is clearly a subset of the other.

Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that.
I do not think anyone would argue that registered trademarks are not in fact trademarks under normal circumstances. So it seems like they changed it simply for clarification.

Clearly WotC did not think it was a meaningful change, or they would not have rendered it meaningless by allowing you to continue to use 1.0 for material released under 1.0A.

Why would you do it separately? You have to know your sales of each product for tax purposes. You know which titles use the OGL and which don't. You also know which fiscal year those sales occurred in. I'm really not seeing the issue here.
Because each has its required information in its required format, and they will be different.
 

Alzrius

The EN World kitten
The article does not say what you say it says. The symbols are different, but the article you link does not say that registered trademarks are not trademarks. One is clearly a subset of the other.
I didn't say they that registered trademarks weren't trademarks, either; I said that they were different, which the article I linked to affirms.
I do not think anyone would argue that registered trademarks are not in fact trademarks under normal circumstances. So it seems like they changed it simply for clarification.
Again, I'm no lawyer, but I don't think it's beyond all imagination that someone could argue (in court, I mean) that a reference to trademarks could be taken as not referring to registered trademarks (notice that the actual Section 7 refers to "Trademarks" with a capital T, suggesting specificity). Even if you say that it's just for adding clarification, that could still be argued as potentially adding a new restriction...which is fine, since WotC can create new iterations of the OGL and add new restrictions to them (hence why they changed the actual license name from v1.0 to v1.0a) without it being a Section 2 violation.
Clearly WotC did not think it was a meaningful change, or they would not have rendered it meaningless by allowing you to continue to use 1.0 for material released under 1.0A.
I can't follow your reasoning here; Section 9 explicitly allows for Open Game Content released under one version of the license to be used under another version of the license. Questions of "meaningfulness" are moot.
 

mamba

Hero
Again, I'm no lawyer, but I don't think it's beyond all imagination that someone could argue (in court, I mean) that a reference to trademarks could be taken as not referring to registered trademarks (notice that the actual Section 7 refers to "Trademarks" with a capital T, suggesting specificity).
you can argue anything in court, the question is how far you get… I do not expect this one to stand a chance

I can't follow your reasoning here; Section 9 explicitly allows for Open Game Content released under one version of the license to be used under another version of the license. Questions of "meaningfulness" are moot.
which is why the theory here is that WotC will not designate any of the changes / additions in the new SRD as OGC.
 

Alzrius

The EN World kitten
you can argue anything in court, the question is how far you get… I do not expect this one to stand a chance
Clearly someone at WotC felt otherwise; hence the change from the OGL v1.0 to the OGL v1.0a, clarifying that Section 7 als applied to registered trademarks.
which is why the theory here is that WotC will not designate any of the changes / additions in the new SRD as OGC.
Sure, and that's possible. But any additional restrictions they add to the OGL v1.1 (such as the aforementioned reporting requirements, royalty requirement, etc.) won't be a violation of the Section 2 of the OGL v1.0 or v1.0a.
 

mamba

Hero
Clearly someone at WotC felt otherwise; hence the change from the OGL v1.0 to the OGL v1.0a, clarifying that Section 7 als applied to registered trademarks.
no idea, they could just have made that change for clarity, without any legal implications

Sure, and that's possible. But any additional restrictions they add to the OGL v1.1 (such as the aforementioned reporting requirements, royalty requirement, etc.) won't be a violation of the Section 2 of the OGL v1.0 or v1.0a.
agreed, WotC has the right to change the license, section 9 says so
 

Voadam

Legend
Did those actually reprint any existing Open Game Content, or did they simply introduce Open Game Content of their own?
From Unearthed Arcana:

15. COPYRIGHT NOTICE

Open Game License v 1.0 Copyright 2000, Wizards of the Coast, Inc.

System Reference Document Copyright 2000-2003, Wizards of the Coast, Inc.; Authors Jonathan Tweet, Monte Cook, Skip Williams, Rich Baker, Andy Collins, David Noonan, Rich Redman, Bruce R. Cordell, based on original material by E. Gary Gygax and Dave Arneson.

Modern System Reference Document Copyright 2002, Wizards of the Coast, Inc.; Authors Bill Slavicsek, Jeff Grubb, Rich Redman, Charles Ryan, based on material by Jonathan Tweet, Monte Cook, Skip Williams, Richard Baker, Peter Adkison, Bruce R. Cordell, John Tynes, Andy Collins, and JD Wiker.

Swords of Our Fathers Copyright 2003, The Game Mechanics.

Mutants & Masterminds Copyright 2002, Green Ronin Publishing.

Unearthed Arcana Copyright 2004, Wizards of the Coast, Inc.; Andy Collins, Jesse Decker, David Noonan, Rich Redman.
 

Jadeite

Open Gaming Enthusiast
Did those actually reprint any existing Open Game Content, or did they simply introduce Open Game Content of their own?
Monster Manual 2 definitely reprinted the Sandmasker as Scorpionfolk, though slightly adjusted since the first Creature Collection had some issues with its stats (as it was developed without access to the final rules).
Unearthed Arcana lists Mutans and Masterminds and Swords of our Fathers in its Section 15, but I'm currently unable if any material has been reprinted since I only own the 3.5 update of SooF.
 

But you are still going to know how much of each of your titles you sold.

And you are going to have to know that to report your income.

But you may not be tracking the difference of your OGL versus non-OGL titles unless you have a reason to do so. Personally I would not sign up for anything where I am providing that kind of information to a company, especially a publisher that is technically going to be a rival. Others may make a different choice there. granted I was never going to do a one D&D book in the first place, so unless this somehow retroactively impacts old OGL products, it isn’t an issue for me.
 

Umbran

Mod Squad
Staff member
Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that. Which means that yes, the OGL v1.0 didn't restrict you from indicating compatibility with registered trademarks, while the OGL v1.0a does. And yet there's clearly no Section 2 violation going on.

I don't think adding clarification should be read as a change in actual coverage.

"You know what? By just saying 'trademark' here, we leave ourselves open to some yahoo trying to argue that doesn't cover registered trademarks. While we would probably win that argument in court, we don't want to have to go to court over this, so let's please just close that possibility off."
 

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