The OGL 1.1 is not an Open License

[FrogReaver]

Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1. Which is based on a subset of income which, despite your protestation to the contrary, is not a subset that you need to care about for any other purpose (including OGL 1.0A). Could well be on a separate reporting period too.

It could be but presumably the easiest route would be by calendar year of the sales, which I’m certain the digital platforms track. There’s no clear reason why Wotc would want the reporting period to be different in any way.

 

[Alzrius]

It doesn't matter how you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.

No, they're not equally forbidden; the latter isn't forbidden at all. Section 2 says you can't alter the OGL v1.0a by adding new terms to it; it doesn't prevent you from creating a new license altogether.

For instance, Section 2 was in the OGL v1.0; nothing about it stopped WotC from then creating and releasing the OGL v1.0a, which has (very slightly) different terms from the previous license. And yet that wasn't a Section 2 violation.

 

[Alzrius]

That said, it appears the citation is to Shannon Appelcline's book, which I have not read, but I'd expect it to be accurate. Someone must have told him this.

Presuming I'm reading the citation right, it refers to this passage from Appelcline's Designers & Dragons: The '90s (pg. 172):

Wizards got to enjoy great new sales of the sort that RPG companies typically see when they revamp their core books. However, the effect on the d20 market was disastrous. Third-party publishers had very little warning of the update, and so some books were out-of-date as soon as they were published. Worse, Wizards didn’t offer any particular update for the d20 trademark, and third-parties were left to their own methods to tell readers that their books were intended for 3.5, not 3.0.

Lots of 3.0 books sat on shelves. Meanwhile, consumers became more careful in making their 3.5 purchases, as they were simultaneously being forced to repurchase many of their core books from Wizards. This caused a cascade effect, and probably contributed to the downfall of consolidation companies like Wizard’s Attic, Fast Forward Entertainment, and Osseum — who in turn took more gaming companies with them when they went down. It also poisoned the d20 trademark: retailers began to see it as a liability, therefore it became a liability for publishers.

The result couldn’t have been worse for Wizards. Though many d20 publishers died and many others like AEG and Fantasy Flight left the field, most of the ones who remained abandoned the d20 trademark entirely, publishing instead under the OGL. This meant that Wizards no longer had any control over them. It also helped publishers to realize that they could publish d20 games that did not depend upon Wizards of the Coast’s core books without losing their audience. Mongoose’s Babylon 5 is an example of a game that went from a d20 first edition (2003) to an OGL second edition (2006).

Even worse, some publishers began to create direct competitors to D&D using the OGL. One of the most notable is Troll Lord’s Castles & Crusades (2004), which pointed the way for the whole retroclone movement. More recently, Paizo Publishing’s OGL-based Pathfinder (2008, 2009) pretty much took over the 3.5 market after Wizards moved on — as we’ll discuss shortly.

 

[Greg Benage]

Presuming I'm reading the citation right, it refers to this passage from Appelcline's Designers & Dragons: The '90s (pg. 172):

Thank you! This matches my recollections for the most part (although FFG didn’t actually “leave the field” until ~2006). In any case, it was 3.5 what done it—nothing with the OGL or d20STL.

So…poor reading comprehension or disingenuous citation? You make the call!

 

[glass]

It could be but presumably the easiest route would be by calendar year of the sales, which I’m certain the digital platforms track. There’s no clear reason why Wotc would want the reporting period to be different in any way.

Which, if true, proves my point. Calendar year != tax year.

No, they're not equally forbidden; the latter isn't forbidden at all. Section 2 says you can't alter the OGL v1.0a by adding new terms to it; it doesn't prevent you from creating a new license altogether.

Nothing prevents you creating a new licence. But you cannot use that new licence to release (other people's) OGC, because that would be adding restrictions (or removing them, which you cannot do either).

For instance, Section 2 was in the OGL v1.0; nothing about it stopped WotC from then creating and releasing the OGL v1.0a, which has (very slightly) different terms from the previous license. And yet that wasn't a Section 2 violation.

It neither added nor removed any restrictions AFAICS.

 

[Alzrius]

Nothing prevents you creating a new licence. But you cannot use that new licence to release (other people's) OGC, because that would be adding restrictions (or removing them, which you cannot do either).

Again, that's not correct. You can release any Open Game Content released under any version of the Open Game License under any other version of the Open Game License, as per Section 9. The Section 2 prohibition on new restrictions prevents you from changing whichever version of the License you're publishing your Open Game Content under. So your OGL v1.0a has to read exactly the same as everyone else's OGL v1.0a (save for the Section 15 declarations). But if WotC wants to release a new iteration of the OGL, with different terms, they can, and presuming it doesn't go out of its way to prevent using Open Game Content published under it with earlier versions of the license, they can otherwise change it however they want, and it won't be a Section 2 violation.

It neither added nor removed any restrictions AFAICS.

That's not correct, as I've noted elsewhere. The OGL v1.0 Section 7 says the following (emphasis mine):

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 in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such 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.

While the OGL v1.0a Section 7 says the following (again, emphasis mine):

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.

That's an additional restriction, since trademarks and registered trademarks are different (and even have different symbols, the former being a delineated by a superscript TM while the latter is an R in a circle). Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that. Which means that yes, the OGL v1.0 didn't restrict you from indicating compatibility with registered trademarks, while the OGL v1.0a does. And yet there's clearly no Section 2 violation going on.

 

[see]

It doesn't matter how you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.

The biggest problem with your interpretation here is that the standard legal rule that contracts should not be interpreted in a way that renders any of the provisions superfluous or meaningless. The sentence immediately prior to the one you're hanging your interpretation on says "No terms may be added to or subtracted from this License except as described by the License itself", which means terms can be added, if done the way the license describes. And then the way the license then describes to add or subtract terms is Section 9, the provision for updating the license.

You are trying to argue that no terms to the use of the content can be added at all based on a sentence immediately following one that explicitly says terms can be added to the license, and additionally that Section 9, if not an utter nullity, is in all substantive terms a nullity.

I mean, maybe a court will agree with you. I don't know for sure, I'm not a lawyer.

But to me, the obvious reading of "other terms and conditions" in the context of Section 2, that accords with the rest of Section 2 and with the existence of Section 9, is terms and conditions that are "other" in the sense they are outside the license itself. A random publisher cannot, say, add a notice to a product that says "The Open Game Content in this work can be used in accordance with the Open Game License 1.0a if and only if you first send us a billion dollars." and expect adherence. But someone taking OGC and using it in accordance with the OGL 1.1, well, that's using the content in accordance with the terms detailed in the OGL 1.0a, over in Section 9.

(Now, it's entirely possible that a court will rule that various possible WotC-favoring terms of a new authorized version of the OGL are invalid because they are unconscionable in a unilaterally-promulgated revision of a contract of adhesion. But that's an entirely different thing than trying to use one sentence of Section 2 to negate the OGL's own provisions for modifying the OGL.)

 

[Hussar]

Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1.

Why would you do it separately? You have to know your sales of each product for tax purposes. You know which titles use the OGL and which don't. You also know which fiscal year those sales occurred in. I'm really not seeing the issue here.

Additionally, you're talking about someone who is publishing both under the OGL and not. Is this a really common thing? I would have thought that most OGL users are using the OGL for their products.

 

[Voadam]

Additionally, you're talking about someone who is publishing both under the OGL and not. Is this a really common thing? I would have thought that most OGL users are using the OGL for their products.

Onyx Path comes immediately to mind. They publish both 5e OGL and Non-OGL.

 

[Jadeite]

The current OGL already lets them do that. That's how it works -- the license goes both ways. You get to use WotCs OGC, they (and everybody else) get to use yours. To my knowledge they've never actually done that, though.

They've done so twice or thrice during 3rd Edition. Monster Manual II contained two creatures from Creature Collection (with changed names, but that was due to White Wolf's designation of product identity). Unearthed Arcana and the d20 Special Dragon Annual contained 3rd party OGC content (though I'm not quite sure if this was done specifically for that issue as no other products are mentioned in its license). But even Unearthed Arcana was nearly 20 years ago.