The OGL 1.1 is not an Open License

[pemerton]

I'm still uncertain on the 1D&D SRD point: if they release it under the OGL 1.1, and OGL 1.1 is in fact a new version of the same OGL license, then is the 1D&D SRD also available for use via OLG 1.0 and 1.0a by virtue of Section 9?

I think everyone is uncertain!

My take is this: by calling the new licence an OGL v 1.1, WotC may incorporate by reference section 9 of the OGL v 1.0/1.0a. Which would then have the consequence that you point to.

But my own view is that it shouldn't be that hard to draft a new licence agreement, even one called OGL v 1.1, that expressly excludes any incorporation by reference of the old section 9. That said, I do agree with @S'mon that the drafting gets even easier if the new agreement is not called OGL v 1.1. But WotC may have PR-type reasons to want to keep using the OGL label.

Anyway, I don't see how there can be any abstract yes or no answer: because it's a question of construction, it has to depend on the actual terms of the new licence.

 

[UngainlyTitan]

I think everyone is uncertain!

My take is this: by calling the new licence an OGL v 1.1, WotC may incorporate by reference section 9 of the OGL v 1.0/1.0a. Which would then have the consequence that you point to.

But my own view is that it shouldn't be that hard to draft a new licence agreement, even one called OGL v 1.1, that expressly excludes any incorporation by reference of the old section 9. That said, I do agree with @S'mon that the drafting gets even easier if the new agreement is not called OGL v 1.1. But WotC may have PR-type reasons to want to keep using the OGL label.

Anyway, I don't see how there can be any abstract yes or no answer: because it's a question of construction, it has to depend on the actual terms of the new licence.

This is kind of my instinct. As you say we will have to see.

 

[kenada]

I’ve seen d20srd.org mentioned a few times. It’s worth noting the content of that site is not purely the SRD. It contains other material WotC released that has been mixed in with it. If you want the actual SRD that was released by WotC, it’s still available from the Open Gaming Foundation or the Wayback Machine. If you do use d20srd anyway, don’t forget to include it in your section 15 declaration.

 

[FrogReaver]

If I've read you correctly, you're arguing that everyone who is licensed by WotC under the OGL v 1.0/1.0a has also, and irrevocably, been made an agent of WotC able to make offers on WotC's behalf in respect of the SRD.

Kind of. I don't know if I would call them 'agents'. That's a particular legal term that carries with it certain legalities that I have no idea whether apply to the licensee in this situation or not.

I would say more specifically that WOTC requires the licensee to convey WOTC's offer that is extended within the OGL 1.0. As long as WOTC is requiring the licensee to convey their offer via inclusion of the OGL 1.0 then I don't see any U.S. court agreeing that WOTC actually stopped making the offer no matter what they say or do elsewhere. *And since WOTC cannot change the OGL 1.0 to stop the inclusion of that offer of license then I don't see legal ground for WOTC to legitimately claim they have ceased making the offer.

That's an interesting argument. It replies to my question, way upthread, as to what is the legal argument that the offer can't be rescinded.

That's fair. I'm not lawyer but I think many here had the gut feeling that the following combination of terms led to that
1. Making the offer within the license
2. Requiring licencees to include the license, offer included
3. Not allowing any terms on the license to be changed
4. Only allowing termination for failure to comply with terms of license
5. Making the benefit of using the license perpetual

Also, the vague understanding that open source software functions on similar principles.

I don't think I agree with it, as I think the OGL permits the non-WotC party to sub-license the SRD but I don't think it otherwise makes the non-WotC party an agent. (The only reference to agents is to agents of WotC in clause 9. Of course that's not definitive in resolving the question of construction.) But I could be wrong.

I find the alternate idea of sub-licensing as an explanation you raise intersting but I know nothing about the law around sub-licenses. Reading the text of the OGL 1.0 it appears to be the copyright holders doing the license granting but since there would be a third party involved in distributing that offer, does that mean they licesned from the third party, that the third party was an agent, or something else? I don't have any idea on those legal answers.

 

[FrogReaver]

What you've identified is the difference between how the contract is formed and what the contract licenses. Suppose that you publish a PF-compatible book, relying on the OGL to create a contractual relationship between you an Paizo. Well, you have probably now also entered into a contract with WotC, albeit indirectly (see a few posts not too far upthread). And you have definitely obtained rights as licensee against WotC as licensor - because in WotC's agreement with Paizo they conferred on Paizo (via the OGL) the capacity to further license the OGL to new parties, like you.

My only issue there is that The OGL 1.0 license itself tells us who grants it. That's the contributors, aka the copyright holders. In your example that would likely be WOTC and Paizo. But in an example with just SRD 5.1 content the only copyright holder would be WOTC. In either event the person would be a licenssee of ALL 'the contributors' and not just whoever last added content or distributed the documents.

I don't see where the OGL gives anyone the right to 'sub-license' the content.

 

[pemerton]

My only issue there is that The OGL 1.0 license itself tells us who grants it. That's the contributors, aka the copyright holders. In your example that would likely be WOTC and Paizo. But in an example with just SRD 5.1 content the only copyright holder would be WOTC. In either event the person would be a licenssee of ALL 'the contributors' and not just whoever last added content or distributed the documents.

I don't see where the OGL gives anyone the right to 'sub-license' the content.

Unless I'm confused, your first paragraph is an analysis of how the sub-licensing works.

EDIT to reply to related post:

Kind of. I don't know if I would call them 'agents'. That's a particular legal term that carries with it certain legalities that I have no idea whether apply to the licensee in this situation or not.

I would say more specifically that WOTC requires the licensee to convey WOTC's offer that is extended within the OGL 1.0. As long as WOTC is requiring the licensee to convey their offer via inclusion of the OGL 1.0 then I don't see any U.S. court agreeing that WOTC actually stopped making the offer no matter what they say or do elsewhere. *And since WOTC cannot change the OGL 1.0 to stop the inclusion of that offer of license then I don't see legal ground for WOTC to legitimately claim they have ceased making the offer.


That's fair. I'm not lawyer but I think many here had the gut feeling that the following combination of terms led to that
1. Making the offer within the license
2. Requiring licencees to include the license, offer included
3. Not allowing any terms on the license to be changed
4. Only allowing termination for failure to comply with terms of license
5. Making the benefit of using the license perpetual

Also, the vague understanding that open source software functions on similar principles.



I find the alternate idea of sub-licensing as an explanation you raise intersting but I know nothing about the law around sub-licenses. Reading the text of the OGL 1.0 it appears to be the copyright holders doing the license granting but since there would be a third party involved in distributing that offer, does that mean they licesned from the third party, that the third party was an agent, or something else? I don't have any idea on those legal answers.

The licence is good against the copyright holder - that's its point. But it is mediated via the links in the OGL chain - eg Paizo, or the hypertext SRD.

My ability to unpack it is limited, because I'm not an expert in the relevant contract law. But WotC have, in the licence they grant in respect of their SRD, authorised others to enter into an identical licence with further parties which confers upon those further parties rights against WotC. Is this agency? A grant of authority to sub-license that is short of agency (which was my assumption, influenced by section 13's recognition of sub-licences)? Someone more expert than me would need to unpack it.

Suppose that X enters into the OGL with WotC, and then reproduces bits of the SRD that deal with clerics but changes the details of how Turn Undead works. Then Y publishes something that reproduces that Turn Undead system and extends it to demons and devils. Suppose further that Y has breached their obligations (eg there's an error in their Section 15 vis-a-vis X; or in Y's identification of X's OGC in Y's publication). Can X sue Y without also making WotC a party to the case? Can WotC sue Y directly? If they make X a party?

If Y are in a contractual relationship with WotC, in which they have promised to treat all OGC in a certain way, then it seems that WotC can sue Y directly. (It is a further question what their remedy might be.) But is that the proper analysis? I'm not sure.

 

[FrogReaver]

Unless I'm confused, your first paragraph is an analysis of how the sub-licensing works.

If that's what is meant by sub-licensing then all is well. I had something a bit different in mind for that term. As I've said before I know nothing about sub-licensing.

 

[pemerton]

If that's what is meant by sub-licensing then all is well. I had something a bit different in mind for that term. As I've said before I know nothing about sub-licensing.

I edited my post to reply to your other post. I don't have strong views on the agency/sub-licensing thing, but try to tease apart some of the issues I see it giving rise to.

 

[Lanefan]

Just a passing note to thank @pemerton for the education he's provided in this thread. Bravo!

 

[Malmuria]

often the side with more power and money can make the law say what they want it to say. Until a conflict arises that needs to be adjudicated in court we won’t know exactly what the OGL update allows or doesn’t allow wotc to do.

Legally Odd: OGL Section 9

Recently, Wizards of the Coast announced that they would be releasing version 1.1 of their famous Open Gaming License, the OGL . What does t...

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