The OGL 1.1 is not an Open License

[S'mon]

@S'mon, however, is a lawyer and apparently the resident expert, so I'd go with his assessment...

I'd hesitate to call myself an expert. I'm an academic lawyer, I teach copyright law and commercial contract law in England, at undergraduate and postgraduate level, domestic and international commercial students. I did my PhD on copyright. I have some familiarity with US law and practice but I think I have a much stronger feel for how a UK case would likely go - and even then I can be surprised, or at least disagree with the decision. There may be US lawyers here with a stronger feel for how the OGL terms would be interpreted in court.

 

[S'mon]

This is the crux of the argument: He is drawing a distinction between revoking the license (which all agree cannot be done) and withdrawing the offer of the license.

In other words: Wizards has made me, and the rest of the world, an offer by releasing the SRD under the OGL. By making a copy of the SRD, or some part thereof, and publishing it with the OGL notice, I accept that offer and become a licensee, and Wizards can never revoke my license. But until I do that, I am not a licensee, and Wizards can withdraw its offer to me at any time.

At least, that is the claim. I am not myself a lawyer, so I can't assess the validity of it.

Yes, that's what P says, and it looks right to me.

 

[mamba]

This is the crux of the argument: He is drawing a distinction between revoking the license (which all agree cannot be done) and withdrawing the offer of the license.

well, maybe I was not clear then (the rest of my answer should have made it clear however). They can do neither, there, done

 

[mamba]

Yes, that's what P says, and it looks right to me.

he starts with a false assumption / premise, and if you draw logical conclusions based on false facts, you still end up in the wrong place, even though it looks good to you and all steps taken are logical

 

[Dausuul]

Everyone knows this. But making an offer to enter into a licence is not the same as entering into a licence. I could, today, declare that I licence the Pemerton SRD under the OGL 1.0 to any and all takers. And then, tomorrow, I could withdraw that offer. Everyone who took up my offer in the intervening period would have rights under the licence. But once I withdrew the offer, no new licences could be created directly with me. Of course, under the terms of the OGL 1.0 sub-licences could be created with my licensors.

So, if you don't mind entertaining a series of increasingly deranged hypotheticals, here's a question that just occurred to me: Can licensees and sub-licensees withdraw their offers? And if not, who has standing to sue them over it?

In other words: Let's say I take you up during the window when you are licensing the Pemerton SRD, use some of it in Dausuul's Tome of Internet Arguments, and start selling copies. If I'm reading you right, I have now entered into a contract with you. Part of that contract is that I have to make the same offer: I have to identify your Open Game Content in the DToIA and allow anyone else to do what I did.

If I tried to withdraw that offer, I assume I would then be in breach of my contract with you, and you could sue me, right?

Of course, if you were trying to claw back the Pemerton SRD from the OGL, you wouldn't want to do that. But until and unless a statute of limitations comes into play, I face the risk that you could change your mind. We'd have to mutually agree to modify our contract. Can we even do that given the terms of the OGL?

And if someone else takes me up on my offer, they too must extend the same offer to others. If they then withdraw the offer, can I sue them for it? Or do you remain the only person who can sue anybody over the Pemerton SRD at any point in the chain?

 

[robconley]

Edited to add: I think I would also have to be quite careful about using some other open source license, like the MIT license, with my code. The OGL does not allow for modifications, so if I put all of my source code under the MIT license, I would be violating the conditions of the OGL. I'd have to say something like, "The contents of the /ogc directory are released under the OGL, everything else is under MIT."

My advice would be to cover the entire source code under the OGL, declare the non-OGL proportion as Product Identity. The contents of the /ogc direction are declared open content under the OGL. Then allow users to use the product identity under the MIT license. Which the OGL permits via.

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.

In the case of your proposed project, that independent agreement happens to be the MIT license.

 

[S'mon]

So, if you don't mind entertaining a series of increasingly deranged hypotheticals, here's a question that just occurred to me: Can licensees and sub-licensees withdraw their offers?

You can withdraw an offer only before it has been accepted. Once someone accepts your offer (here, to license use of your material) you can't withdraw your offer to that person.

 

[robconley]

You can withdraw an offer only before it has been accepted. Once someone accepts your offer (here, to license use of your material) you can't withdraw your offer to that person.

So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here if any?

 

[Reynard]

So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here?

All WotC withdrawing their offer means is no one NEW gets to enter into the license. it doesn't undo the previous ones.

 

[robconley]

All WotC withdrawing their offer means is no one NEW gets to enter into the license. it doesn't undo the previous ones.

Sorry incomplete hypothetical, Joe shares the modification of the MF RPG AFTER Wizards withdraws the offer. And also Joe basically doesn't do much on-line. He just happened to buy my book at North Texas Con. The same with Steve.

Keep in mind if we accept @pemerton conclusion. The OGL explicitly grants me the right to distribute the content I have modified in section 10. Th

10. Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute.

So how is Joe or Steve supposed to know that Wizard's withdrew their offer? That is the question I am posing here. There is a logical problem with @pemerton argument. OK Wizards offered the d20 SRD under the OGL, OK they withdraw it, OK I get to keep using. But then I can only use the rights I was granted if I distribute the copy of the OGL with work. Which say that person who get my work can also share it and modify provided that one of the things they do is bundle a OGL with the work.

See the problem with the logical implications of @pemerton 's arguments?

As a historical note, the original author of open source licenses like the GPL deliberately designed it this way. That if you contribute content it is truly perpetual.