The OGL 1.1 is not an Open License

[pemerton]

The reasonably obvious move I see is for WotC to call the new license the OGL 1.1, but to not designate any part of the new SRD as Open Game Content.

This creates a situation where, at least on the surface, all existing Open Game Content released under the OGL 1.0a can, per Section 9 of that license, be used in products licensed under the new OGL 1.1 (because the OGL 1.1 is a WotC-authorized version of the Open Game License), but none of the new SRD or material derived from the new SRD can be used under the OGL 1.0a (because nothing in the new SRD is Open Game Content, it's some "New Classification of Content" only usable under the OGL 1.1).

This is an interesting variation on the idea that I'd had:

Whether a new private law instrument constitutes an update to, or revision of, a prior one will depend on the construction of both the old and the new instruments.

Another way to look at it is this: under the OGL 1.0/1.0a, WotC has not made a binding promise to anyone about the manner in which it will offer licenses for its future work. (Eg no one tried to argue that offering the 4e SRD under the GSL was a breach of contract with OGL parties.) So it can offer to license the revised SRD under whatever terms it wants. Suppose, in those terms, it uses the phrase "Open Game Content". Will that phrase, in itself, enliven the rights that existing OGL parties have as per section 9 of the OGL v 1.0/1.0a? I don't see how that question can possibly be answered without knowing what the rest of the OGL v 1.1 says.

 

[Morrus]

Those of you with Law backgrounds can you answer me this, because I am getting conflicting answers.

If there is an OGL v1 with SRD that has a class in it, does that mean you can use ANY version later published of that class?

Define “use”? It’s a word people throw round a lot, and can mean anything from “reprint word for word”, “rephrase”, “reference”, or “make something compatible with”. And other things.

 

[GMforPowergamers]

Define “use”? It’s a word people throw round a lot, and can mean anything from “reprint word for word”, “rephrase”, “reference”, or “make something compatible with”. And other things.

Okay I mean make a new subclass for...

Like in my example for cleric lets say I am a big company and I want to put out the "mystic domain" but hav it use the layout for levels from 1D&D can I use the SRD from the 5e 2014 book

 

[Morrus]

Okay I mean make a new subclass for...

Like in my example for cleric lets say I am a big company and I want to put out the "mystic domain" but hav it use the layout for levels from 1D&D can I use the SRD from the 5e 2014 book

If your subclass consisting of your original text says “level 1” or “level 3” or “level 99” the OGL has nothing to say about that.

Layout? That’s graphic design. Nothing to do why the OGL. 3PPs generally use their own trade dress.

 

[pemerton]

Those of you with Law backgrounds can you answer me this, because I am getting conflicting answers.

If there is an OGL v1 with SRD that has a class in it, does that mean you can use ANY version later published of that class?

<snip>

Amended add on to that qustion
How much of a change would the cleric (or any class) have to go through for a lawyer to argue "They are using the wrong license for this and as such are not subject to the protections of the old OGL?"

The OGL doesn't license classes, or other D&D concepts.

It licenses copyrighted works.

So if you want to publish a book that talks about clerics, the relevant questions are (i) does my book contain material in respect of which someone else (eg WotC) owns the copyright, or that would in some other way infringe copyright that they enjoy? If it does, has that person licensed me to publish the material in spite of their copyright?

Looking at the cleric right now. The subclass levels have changed (along with a few tweeks here and there). Can you use the SRD with the 2014 cleric but publish it useing the 2024 cleric even if the 2024 cleric is NOT relased as open under that OGL but under a diffrent more restrictive one?

<snip>

I know 4e was a MUCH bigger change and people got away with it... but if WotC/Hasbro wanted to throw there weight around and hit someone with a C&D and if they didn't a full lawsuit (even if only 1 to scare others) how hard is it to argue in court?

If you were to reproduce the text found in a new WotC publication (say, an Unearthed Arcana document, or a new PHB, or a revised SRD) then the answer to the first question is probably yes - as in, WotC probably enjoys copyright in the text you are trying to reproduce.

And as per @S'mon's posts upthread (see from around post 241 to post 245), that text is probably not licensed under the existing OGL v 1.0a as that applies to the current (non-revised) SRD.

If you were to were produce new text, written by you, that conveys the same information as WotC's new text, then you would enjoy copyright in your new text. Would it nevertheless infringe WotC's copyright? That would depend on the details, some of which S'mon fleshes out in those posts - eg is your text derivative of some WotC text in respect of which you do not enjoy a licence?

My very rough intuition is that if you are publishing a new cleric sub-class, invented by you, that happens to gain sub-class features as the same level as a cleric would as described in WotC's Unearthed Arcana, new PHB or revised SRD, then you are probably not infringing WotC's copyright. Whereas if you are trying to reproduce a cleric sub-class that WotC has published, using your own words, the argument that you are infringing their copyright becomes stronger.

Some people will reiterate that game mechanics can't be copyrighted. This is true. But WotC's text that talks about (eg) how a life cleric gest such-and-such an ability at such-and-such a level is, at least arguably, not just a game mechanic. It is also a text that tells us about the (imaginary) priests of the gods of life. WotC enjoys copyright in that text, and it is the relationship of your text to that text (and to other similar text that appears in WotC's Unearthed Arcana, new PHB or revised SRD) that is of most relevance to whether or not you are infringing WotC's copyright.

I want to reiterate that my intuition is very rough, and you could not confidently act on it without getting legal advice which was able to refer to the actual details of your proposed publication and the WotC publication that you are inspired by.

 

[kenada]

2) is anything preventing ‘us’ from forward-cloning 1DD under 1.0a, similar to how all the retroclones came out of it? And again I do not see anything that prevents that, as rules cannot be protected (just the wording) and changes like race to species cannot be protected either. No idea if anyone will try and what WotC would do if they did. My guess is that it would stand, but it might cost more to find out than anyone is willing to risk.

WotC could decide that protecting their plans for the 2024 version of D&D is important enough (compared to doing so regarding legacy material) to issue C&Ds and take people to court.

 

[mamba]

WotC could decide that protecting their plans for the 2024 version of D&D is important enough (compared to doing so regarding legacy material) to issue C&Ds and take people to court.

Which is my guess too, see my last sentence. Clearly quite the departure from the previous stance / OGL 1.0a

 

[see]

That is possible. They could do a convoluted bait and switch to be technically consistent with their statement of an OGL version with an "SRD" and release no OGC under it.

Well, the way I'd do it, hypothetically, wouldn't be particularly bait-and-switch-like; the "New Classification Content" would for all practical purposes be "Open Game Content for the OGL 1.1, but with a different label to stop people from arguing they can backport it to OGL 1.0a under that license's Section 9".

At which point, sure, there are people who can choose to try to do forward-compatible material under the OGL 1.0a. But everything they release is "Open Game Content" that publishers can use under the OGL 1.1 (since I provided for reusing Open Game Content under the OGL 1.1, and Section 9 of the OGL 1.0a says they can), while the stuff the OGL 1.1 publishers release as "New Classification Content" can't be dragged back into the 1.0a ecosystem. If in this hypothetical universe I had set up the carrots for using the new license and new SRD right, publishers pretty much go along and move into the OGL 1.1 universe rather than stick with the OGL 1.0a.

And, of course, to help make sure I'm doing things right, and the carrots are all attractive enough, I'd publicly release a draft of the OGL 1.1 in early 2023, a year or more in advance of the new edition, specifically so that I can get reactions and feedback in advance, and work out any rough spots necessary to gain the publishers' acceptance of the new approach.

Some people will still, of course, object; after all, my new OGL 1.1 is going to be more limited in what sorts of products can be made and has a royalty scheme. They would quite accurately say "The OGL 1.1 is not an Open License", at least per the original Open Gaming Foundation philosophy ("That game rules and material that use those rules, should be free to copy, modify and distribute.") But, a handful of disgruntled fans aren't what I'm worried about; I'm after publisher buy-in to a model that is more advantageous for WotC than the previous model.

 

[Greg Benage]

At which point, sure, there are people who can choose to try to do forward-compatible material under the OGL 1.0a. But everything they release is "Open Game Content" that publishers can use under the OGL 1.1 (since I provided for reusing Open Game Content under the OGL 1.1, and Section 9 of the OGL 1.0a says they can), while the stuff the OGL 1.1 publishers release as "New Classification Content" can't be dragged back into the 1.0a ecosystem. If in this hypothetical universe I had set up the carrots for using the new license and new SRD right, publishers pretty much go along and move into the OGL 1.1 universe rather than stick with the OGL 1.0a.

This is where I put my money, but "New Classification Content" should be called "One System Rules" for maximum trolling value. Also, I'm not sure about the definition of "carrot" in this scenario.

 

[Reynard]

Second, we’re updating the OGL to offer different terms to creators who choose to make free, share-alike content and creators who want to sell their products.

I keep thinking about this and how this is the biggest departure from the previous implementation of the OGL. WotC trying to decide who gets to make money off open content, as support for their games, seems really predatory in comparison to the original intent of the OGL.