The OGL 1.1 is not an Open License

[Reynard]

can you dumb this down for me? Like pretend you are talking to a kid... does this mean this will somehow retroactively stop someone from useing the old OGL?

No.the language of the current OGL explicitly says that any version of the OGL can be used with any content released under any version of the OGL. That's Section 9. If WotC uses the OGL -- even if they modify it -- to release an SRD for 1D&D, then the contents of that SRD are available for all versions of the OGL. It was intentionally designed that way to keep future stewards of D&D from closing the game, and its why WotC tried to get away with the GSL -- a different license -- and most 3PPs balked.

 

[GMforPowergamers]

I think you may be exaggerating the effect of section 9 of the OGL v1.0/1.0a.

The OGL is a private legal agreement. It is binding only on those who are party to it, in virtue of their agreement to be bound.

So:

If a publisher (say WotC) publishes a document (say, a SRD) and then makes it available under the OGL 1.0/1.0a (ie they offer to any and all takers to enter into a licence with them on the OGL 1.0/1.0a terms), and others (ie 3rd party publishers) accept that offer on those terms, the offering publisher is bound. This means that WotC is obliged to allow distribution of its existing OGL-released SRD material under future versions of the OGL that it releases (ie "authorized versions" as per section 9).

Just sticking to this bit of the analysis, I think that @estar is correct to flag the possibility that OGL 1.1 may not be a "version" of OGL 1.0/1.0a, as it apparently will not permit someone who becomes a party to it to distribute OGC royalty-free. Hence anyone bound by the terms of the OGL 1.1 (as announced to date) cannot comply with sections 2 and 4 of the OGL 1.0/1.0a. Which seems to me to be sufficient to imply that OGL 1.1 will not be a "version" for section 9 purposes.

But anyway, moving on:

Suppose that a publisher (eg WotC) publishes a document (eg a revised SRD) and makes it available under OGL 1.1, that new offer is not bound by the terms of the old offer. That offer might, for instance, be an offer to permit use of the revised SRD material under OGL 1.1 terms but not under OGL 1.0/1.0a terms. And the existence of an earlier offer under those earlier terms won't be relevant to the new offer.

What seems more relevant than section 9 is the definition, in section 1, of "Derivative Material" and "Use", together with section 4. To explain why I think this:

Section 4 of the OGL 1.0/1.0a permits parties to the licence (licensors) to "Use" the licensed OGC. "Use" is defined to mean (by way of the definition of "Distribute") "reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content". And "Derivative Material" means "means copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted".

So if the revised SRD is a derivate work, addition to, extension of, or improvement of the existing SRD then the OGL 1.0/1.0a seems to already licence licensors to use the revised SRD. And those licensors have in turn been authorised, by the terms of the OGL 1.0/1.0a, to issue sub-licenses in respect of the OGC they are authorised to use.

At this point my ability to analyse comes to an end - and contractual construction is not my main field, so all of the above is put forward tentatively rather than dogmatically. I call on @S'mon to see if he is able to express a more expert view.

I am trying (not a lawyer...don't even play one on TV) to understand both lines of thought here...

so in theory if Wotc puts the new race rules and background rules and subclass rules in the NEW srd/ogl but not the old, and someone chooses to use the old BUT release a race with no stat mods Wotc (hasbro) legal could come after them and at least challenge it in court.

 

[MichaelSomething]

I think fan content isn't an issue but those who wish to become professional third parties should raise an eyebrow.

But I thought third parties Arn't a threat since it seems that only a minority want something non WOTC for their D&D?

 

[GMforPowergamers]

No.the language of the current OGL explicitly says that any version of the OGL can be used with any content released under any version of the OGL. That's Section 9. If WotC uses the OGL -- even if they modify it -- to release an SRD for 1D&D, then the contents of that SRD are available for all versions of the OGL. It was intentionally designed that way to keep future stewards of D&D from closing the game, and its why WotC tried to get away with the GSL -- a different license -- and most 3PPs balked.

so your reading is they can not infact create a new SRD/OGL with new rules (more limited) because ANY srd will back date to the old OGL? am I reading that correct? (Tomorrow I am TOTALLY bugging my law team at work with hypotheticals as if it was work related)

 

[Alzrius]

Just sticking to this bit of the analysis, I think that @estar is correct to flag the possibility that OGL 1.1 may not be a "version" of OGL 1.0/1.0a

In all honesty, that seems to be really what most of the speculation comes down to.

Given that there's no hard-and-fast definitions for what constitutes a "version" in the text of the license itself, I suspect that it's largely going to be an issue of whether or not it actually calls itself the "Open Game License version 1.1" or something to that effect. If it says it's the "One D&D Third-Party Usage License" or anything like that, then it won't matter how much it sounds like the OGL; it won't be a version of it (unless some provision in its text explicitly says it's to be treated that way, for whatever purposes).

 

[pemerton]

I am trying (not a lawyer...don't even play one on TV) to understand both lines of thought here...

so in theory if Wotc puts the new race rules and background rules and subclass rules in the NEW srd/ogl but not the old, and someone chooses to use the old BUT release a race with no stat mods Wotc (hasbro) legal could come after them and at least challenge it in court.

In the scenario you describe, I don't understand what WotC's claim against the publisher is supposed to be.

As best I can see, WotC has no IP claim over someone publishing a new race for use in D&D that has no stat mods, or flexible stat mods. And someone who is a licensee under the OGL v 1.0/1.0a has various obligations, but none of them that I can see is an obligation not to publish a new races that has no stat mods or flexible stat mods.

 

[Reynard]

so your reading is they can not infact create a new SRD/OGL with new rules (more limited) because ANY srd will back date to the old OGL? am I reading that correct? (Tomorrow I am TOTALLY bugging my law team at work with hypotheticals as if it was work related)

They could create a NEW open license so the new SRD was not released under any version of the OGL.

How effective that would be is up in the air since assuming 1D&D is compatible it means all a 3PP has to do 8s tweak existing (ie 5E) open content to be compatible with 1D&D content. And remember this is about copyright-- not trademarks or patents - so in any case all that is protected is expressions of rules, not the rules themselves.

 

[GMforPowergamers]

In the scenario you describe, I don't understand what WotC's claim against the publisher is supposed to be.

As best I can see, WotC has no IP claim over someone publishing a new race for use in D&D that has no stat mods, or flexible stat mods. And someone who is a licensee under the OGL v 1.0/1.0a has various obligations, but none of them that I can see is an obligation not to publish a new races that has no stat mods or flexible stat mods.

the argument I am forseeing (again not a lawyer) is that we offer a license to use X and a license to use Y now they are trying to use license for X to make Y. Just phrased better and most likely with precedent quoted

 

[GMforPowergamers]

They could create a NEW open license so the new SRD was not released under any version of the OGL.

How effective that would be is up in the air since assuming 1D&D is compatible it means all a 3PP has to do 8s tweak existing (ie 5E) open content to be compatible with 1D&D content. And remember this is about copyright-- not trademarks or patents - so in any case all that is protected is expressions of rules, not the rules themselves.

of course the BIG elephants in the room is "Do I want to spend money against Hasbro law teams to prove I am right even if I know I am?"

 

[pemerton]

In all honesty, that seems to be really what most of the speculation comes down to.

Given that there's no hard-and-fast definitions for what constitutes a "version" in the text of the license itself, I suspect that it's largely going to be an issue of whether or not it actually calls itself the "Open Game License version 1.1" or something to that effect. If it says it's the "One D&D Third-Party Usage License" or anything like that, then it won't matter how much it sounds like the OGL; it won't be a version of it (unless some provision in its text explicitly says it's to be treated that way, for whatever purposes).

I don't agree with your second paragraph, when you say "it's largely going to be an issue of . . .".

As I said in my post, I think the most obvious argument that it is not a version is that it does not permit licensees to sub-license the rights that the OGL v 1.0/1.0a requires them to. An instrument that generates obligations at odds with those of another instrument doesn't seem to me to count as a version of that other instrument.

No.the language of the current OGL explicitly says that any version of the OGL can be used with any content released under any version of the OGL. That's Section 9. If WotC uses the OGL -- even if they modify it -- to release an SRD for 1D&D, then the contents of that SRD are available for all versions of the OGL. It was intentionally designed that way to keep future stewards of D&D from closing the game, and its why WotC tried to get away with the GSL -- a different license -- and most 3PPs balked.

I think that you are treating the current OGL (v 1.0/1.0a) as if it were a statute. It's not. It's a private legal agreement. WotC is not bound, in respect of its future offers, by the terms of its old offers - except with respect to people who took up those old offers, and hence entered into a contractual relationship with WotC. The fact that WotC has promised Paizo that Paizo can use the 3.5 SRD under any future version of the OGL doesn't mean that, if WotC now licenses its 5.5 SRD to you under the OGL 1.1, that WotC is obliged to also let you use the 5.5 SRD under the terms of the OGL 1.0. (Unless the OGL 1.1 says so. Presumably it won't.)

How do you think WotC is coming under the obligation that you say it is under, in relation to future offerees/licensees?