The OGL 1.1 is not an Open License

[pemerton]

The interesting question becomes if the new SRD is designated "Open Game Content" under the OGL 1.1. The question then becomes, does the OGL 1.1 only apply, or can I use the OGL 1.0a for this Open Game Content? And that isn't actually particularly obvious. The OGL 1.0a is not a law; it does not automatically cover material that is simply called Open Game Content. The new "Open Game Content" was released under the OGL 1.1, not the OGL 1.0a. But if I'm already a licensee under the OGL 1.0a, and WotC releases something they call "Open Game Content", it is possible that I can use the new "Open Game Content" under the existing license. This is particularly true since WotC drafted both licenses, and ambiguities in contract law are supposed to be resolved in favor of the non-drafting party.

I agree with the way you have framed this. I think we are saying basically the same thing (you use "law" where I used "statute"), and are trying to focus on who has the benefit of what private rights against WotC, which have been created by entering into licences or sub-licences with WotC.

So, Gamer Bob writes an adventure and sells it under the OGL 1.0. Makes beer money. Sweet!

A few years later, Gamer Jane looks at some Open Game Content in Bob's adventure, thinks it is cool, and puts it into her sourcebook under OGL 1.1. She hits the lottery, so to speak, and makes over $750k. Good on ya, Jane!

Then WotC knocks on Jane's door, and Jane pays WotC a royalty on using the D&D game engine for her creative work. She then goes back to her desk hoping to catch lightning in a bottle twice.

I don't see how the sky is falling here. Jane doesn't owe Bob anything, OGL says she can use his stuff royalty free. Bob doesn't have to pay anything. Not only did he not make the $750k threshold, he published his deal under a different version of the licence a long time ago. WotC isn't paying anybody anything, people are playing in their sandbox, as it were.

I'm not seeing how the sky is falling here.

I agree with @FrogReaver's analysis: Jane is breach of her contractual obligations to Bob under the OGL 1.0, as she has not complied with her obligation to provide a royalty-free licence for the use of the OGC. Under the OGL 1.1, royalties are payable (on a conditional basis).

This is the basis of @estar's concerns, as I understand them.

I personally have no real stake in the issue of whether or not WotC's plans lead to multiple, separate, OGL communities. (Whereas this is an important issue for estar.) I'm just commenting on the legal analysis.

 

[UngeheuerLich]

I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded. It is also unfounded that they can somehow lower the bar later with 1.2 or so for those who use 1.1.
The made a license. You agreed to it by printing it in the book. So pathfinder is safe as is everything else.
I am not a lawyer or an IP lawyer for that matter.

 

[pemerton]

maybe my example isn't the best... maybe new subclass set ups (different levels for abilities) can I make a 1D&D cleric subclass that works off the new line up useing the old OGL? if I stood in court and the other side showed "the class in the SRD linked to this OGL gets things at X Y and Z, but in this OTHER OGL the srd linked to it gets them at A B and C, so you can't use the old OGL/SRD for the new set up"
does THAT make it more of an argument?

If you publish a cleric subclass under the OLG 1.0/1.0a you need to be able to give the commitment required by section 5 - ie that you have the legal capacity to confer rights on others to use your material.

If the licence that you get from WotC in respect of the 5e SRD gives you those rights, then you are fine. If it doesn't, then you are not fine.

If your cleric subclass references product identity, you won't be fine. Let's assume it doesn't.

If you cleric subclass references stuff in respect of which WotC enjoys IP rights, and if your licence from WotC in repect of the 5e SRD doesn't give you permission in respect of WotC's IP rights, then you won't be fine either.

What might that stuff be? I don't think getting sub-class features at this or that level could count - to me, that seems to be exactly the sort of thing that is licensed by the OGL 1.0/10a when WotC released the 5e SRD under it. (But I'm not much of an IP lawyer. So maybe I'm wrong.)

In the case of 4e, what the GSL tended to protect was trade dress - the distinctive templates for powers, presenting class features, etc, and also the names of powers and abilities. I don't think that having sub-class features at level X rather than level A is trade dress that is not licensed under the existing SRD/OGL.

I think the sort of issue you are considering would be more likely to arise in respect of a new sort of creature or magic item or whatever that is not derivative of the 5e SRD, or in respect of the actual copyrighted text of the revised SRD.

 

[pemerton]

I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded.

This is correct in my view. Existing licensees seem to me to be fine in respect of their existing publications.

Its new stuff that wants to draw on material that is only licensed under a new OGL as part of a revised SRD that is trickier. And it seems that some publishers at least have an incentive to want to produce that sort of material, so as to stay up-to-date with the D&D market.

 

[see]

but how does there being a new elf, or new cleric interact with that?

Unfortunately, what constitutes an infringing derivative work and when you're making one, and how that interacts with a license to make derivative works for similar-but-not-identical source material, doesn't lend itself to bright-line rules that can be rattled off by forum posters (or, at least, by forum posters that you should trust).

 

[FrogReaver]

I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded. It is also unfounded that they can somehow lower the bar later with 1.2 or so for those who use 1.1.
The made a license. You agreed to it by printing it in the book. So pathfinder is safe as is everything else.
I am not a lawyer or an IP lawyer for that matter.

A few observations:

• You are correct that the stuff produced under no royalty licenses will remain royalty free.
• This seems to mean that content produced under the OGL 1.0/1.0a license CANNOT be updated to a OGL 1.1 license as doing so breaks the original license. Also, derivative works for such products CANNOT be updated to OGL 1.1 as they would require a royalty free OGL license.
• Since D&D One is 'backward compatible, most D&D One content should theoretically be reproducible under the OGL 1.0/1.0a licenses with some altered verbiage. (at least to my understanding *not a lawyer blah blah blah).

Because of the 1st and last bullet point the sky isn't falling.

Because of the 2nd, if they wall of OGL 1.0/1.0a content from D&D Beyond and maybe even DMsGuild as well (most obvious business move IMO) then that content won't be able to be reproduced under OGL 1.1 and thus will not be on D&D Beyond, etc, nor works derivative of it.

IMO This change if it occurs has a real chance to really harm 3pp as it looks like it will require them to abandon all their old content and any new derivates from it for the WOTC D&D One online ecosystem.

 

[pemerton]

IMO This change if it occurs has a real chance to really harm 3pp as it looks like it will require them to abandon all their old content and any new derivates from it for the WOTC D&D One online ecosystem.

If I was WotC, I would want an outcome where stuff that ultimately flows from the old SRD can be licensed, by its authors (but not necessarily their licensees), under the new OGL 1.1

I'm not 100% sure what the proper drafting is to achieve that outcome, but I think it should be feasible given that WotC owns the copyright in both the old and the revised SRD.

The spanner in the works would be 3PP stuff that (in some fashion that I will describe only abstractly) flows both from the SRD and from another 3PPs original work. Because WotC can't oblige those other 3PPs to accept the OGL 1.1 terms for their stuff. So I think that stuff could well be cut loose in the way you describe, unless those other 3PPs elect to bring it into the fold.

I'll again add the caveat that the previous paragraph is my best effort to think through the issues of contractual construction - but I'm not an expert on that or on the relevant IP law.

 

[FrogReaver]

If I was WotC, I would want an outcome where stuff that ultimately flows from the old SRD can be licensed, by its authors (but not necessarily their licensees), under the new OGL 1.1

I'm not 100% sure what the proper drafting is to achieve that outcome, but I think it should be feasible given that WotC owns the copyright in both the old and the revised SRD.

The spanner in the works would be 3PP stuff that (in some fashion that I will describe only abstractly) flows both from the SRD and from another 3PPs original work. Because WotC can't oblige those other 3PPs to accept the OGL 1.1 terms for their stuff. So I think that stuff could well be cut loose in the way you describe, unless those other 3PPs elect to bring it into the fold.

I'll again add the caveat that the previous paragraph is my best effort to think through the issues of contractual construction - but I'm not an expert on that or on the relevant IP law.

I'm not sure there's a clean way to end the perpetual royalty free license - especially since that license was created so others could also make derivative works of such 3rd party content. Standing might be an issue if no one else had used the OGL license attached to the 3rd party product but if they had then things get really complicated legally.

*Not a lawyer or expert either.

 

[Lanefan]

The OGL is not a statute. It is only binding on WotC in respect of those who have entered into a contractual licence with WotC under its terms.

For future people, who enter into a contractual relationship with WotC under the terms of the OGL 1.1, but who have no relationship with WotC under the terms of the OGL 1.0/1.0a, the terms of the latter document have no legal consequences that I can see.

Which means, if I'm reading you right, if you're new to publishing and want to put something out under 1.0/1.0a you gotta do it before 1.1 is released. Get in before the lock, as it were.

Is that what you're saying?

 

[FrogReaver]

Which means, if I'm reading you right, if you're new to publishing and want to put something out under 1.0/1.0a you gotta do it before 1.1 is released. Get in before the lock, as it were.

Is that what you're saying?

Since the 5.1 SRD has the OGL included stating it can be reproduced then I would think all you would need to do is obtain a copy of the 5.1 SRD from anyone with the 1.0/1.0a license attached.

5.1 SRD with OGL

I don't think you need to get in before 1.1 OGL comes out.