We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!

[EpicureanDM]

Yeah, but doesn't that ignore that sub-licensors themselves can in turn make the offer (instead of WotC), and so you can produce new Open Game Content under the OGL v1.0a so long as you use Open Game Content from an existing product to do so? I thought that idea was put forward in another thread here.

From the reddit thread:

This is likely where the confusion is coming from. However, it's important to note this protects content made under OGL 1.0a, but the license itself is not a part of the license. It has to be attached as a notice to the content, but WotC was very explicit that the text of the license is not included, and remains owned by WotC.

Unlike the other credible legal analysis I've seen, I'm not as confident with this bit. OGL 1.0a licensees are exactly that: licensees, not sub-licensees. The word "sublicensees" doesn't appear anywhere else in the OGL 1.0a except Section 13, which reads:

Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.

That's it. Section 13's only contemplating termination due to a licensee's (not a sublicensee's) failure to comply with the OGL. I don't see a provision in the OGL 1.0a that grants licensees the right to sublicense. It would be in Section 4, where you find the bundle of rights given to licensees: perpetual, worldwide, royalty-free, non-exclusive. So how are these theoretical sublicensees mentioned in Section 13 (and only Section 13) being generated and by whom? Note that in the supposedly leaked text of the OGL 1.1, WotC does explicitly give itself the right to sublicense. Regardless of your position on the overall professionalism of the supposedly leaked text, that second section that describes WotC's IP rights does sound like proper legalese. I would expect that word - "sub-licensable" - to be in Section 4 of OGL 1.0a if the licensee has that right.

A lot of effort went into making OGL 1.0a fit onto a single piece of paper, so I imagine a lot of eyes spent a lot of time boiling it down to what they thought were the absolute essentials. So that solitary reference in Section 13 to sublicenses suggests that it was included for some reason. Courts assume that all the language included in an agreement was included on purpose, so there's a presumption that WotC had something in mind when they included this sentence. But it's also true that people make mistakes. Language supporting this sentence in Section 13 might have been removed and some lawyer didn't think through the ramifications, leaving that orphaned sentence in there.

 

[pemerton]

The lawyer in the reddit thread claims this wouldn't apply because all the sublicenses granted by other publishers depend on the original living document from WotC, and if WotC deauthorises OGL v1.0a, they would also lose that right. Of course, I don't know if their claim is correct, but if this is the case then a lot of companies will be changing the way they do business very soon.

I still don't know what "de-authorisation" means in this context. Is it meant to be a notion that arises under the terms of the OGL v 1.0a? A general notion from the law of IP licensing? Or something else.

My reading of the OGL v 1.0a is that WotC cannot unilaterally terminate their existing licence with (say) Hypertext SRD. And under section 4 of the OGL, Hypertext has the authority to license others to Use the OGC that has been licensed to it, provided that the sub-license itself is in the same terms as the OGL v 1.0 (subject to the possibility of choosing other authorised versions as per section 9).

What's the alternative view? I'm not being dismissive, but it would be helpful to actually see it set out.

 

[Snarf Zagyg]

I do hope you turn out to be right and that this whole situation ends up being an exaggeration. But given that third-party creators who were contacted by WotC and told to choose whether they'll adopt OGL v1.1 or not (but can't discuss details due to NDAs) are also showing extreme discomfort with what WotC is preparing, I think the OGL v1.1 that will be officially announced will be a lot closer to what the leaks say than you might think.

Look ... I mean ... this-

"You waive any right to sue over Our decision on these issues. We're aware that, if We somehow stretch Our decision of what is or is not objectionable under these clauses too far, We will receive community pushback and bad PR, and We're more than open to being convinced that We made a wrong decision. But nobody gets to use the threat of a lawsuit as part of an attempt to convince Us."

Without going into issues of waiver (especially w/r/t licenses) and why I think this is immediately suspect, I have a hard time imagining anyone with half a brain or any level of competence putting that into writing.

 

[Ondath]

What about OGL 1.0?

If Hasbro's lawyers are worth their salt, they'd probably deauthorise 1.0 alongside 1.0a if this is the direction they're going for.

What was the difference between the two of them anyway?

 

[jerryrice4949]

I do hope you turn out to be right and that this whole situation ends up being an exaggeration. But given that third-party creators who were contacted by WotC and told to choose whether they'll adopt OGL v1.1 or not (but can't discuss details due to NDAs) are also showing extreme discomfort with what WotC is preparing, I think the OGL v1.1 that will be officially announced will be a lot closer to what the leaks say than you might think.

Do we have the publishers actually saying this explicitly? I haven’t heard that. I have heard rumors of it but nothing where Kobold Press for example says publically they have concerns which would not violate the NDA as long as they didn’t release details of the new OGL.

 

[mamba]

At this point I hope someone comes up with an Open5e, as an almost-clone of 5e and not using the OGL, for all 3PP to switch over to use as the base for their products. Then license that under something similar to the OGL but air-tight, so no one can revoke or alter anything at a later point, and cutting WotC out completely. Heck, use an existing CC license if that works.

 

[EpicureanDM]

My view, as @Ondath has mentioned, is that WotC could cease to offer new licences of its existing SRD on the OGL terms. But existing licensees would enjoy the authority to license OGC that has been licensed to them, as per section 4 of the OGL v 1.0a together with the definition of "Use".

As I also posted in the other thread, IP licensing law is not my field of expertise. So there may well be arguments that refute my view. But I haven't seen this notion of "deauthorisation" explained in a way that makes sense. (And the comment that you point to is mostly referring to what I posted in the other thread.)

Isn't the claim made by Ondath, and supported by me, grounded in contract law, not IP law?

And could you explain how you think "Use" as a defined term interacts with Section 4 of the OGL 1.0a to create in the licensee a right to sublicense?

 

[Ondath]

Look ... I mean ... this-

"You waive any right to sue over Our decision on these issues. We're aware that, if We somehow stretch Our decision of what is or is not objectionable under these clauses too far, We will receive community pushback and bad PR, and We're more than open to being convinced that We made a wrong decision. But nobody gets to use the threat of a lawsuit as part of an attempt to convince Us."

Without going into issues of waiver (especially w/r/t licenses) and why I think this is immediately suspect, I have a hard time imagining anyone with half a brain or any level of competence putting that into writing.

Yeah, that part of the text is absolute nonsense. My best bet would be that it's a rephrasing of the intent behind that part of the license by @Stonesnake, but if that's not the case, that reduces the credibility of the leak quite a bit.

 

[Ondath]

I still don't know what "de-authorisation" means in this context. Is it meant to be a notion that arises under the terms of the OGL v 1.0a? A general notion from the law of IP licensing? Or something else.

Again, just relaying the opinion of the lawyer on the reddit thread:

"de-authorisation" seems to be related to Section 9's "You can use any authorised version of the license" clause from what I understand. Since that's the only way WotC can do something that would be equivalent to revoking OGL v1.0a, they seem to be going that way and declaring the alternative OGL versions to be de-authorised so that they can't be used instead of OGL v1.1. I don't know if they have the right to do that, but I'm guessing that would have to be decided in court.

 

[Alzrius]

If Hasbro's lawyers are worth their salt, they'd probably deauthorise 1.0 alongside 1.0a if this is the direction they're going for.

What was the difference between the two of them anyway?

I looked into that over on this post. Basically, a slight amendment to Section 7 clarifying that it covers both trademarks and registered trademarks.