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

[pemerton]

Yeah, generally you have to have some sort of superficial "I agree" and usually in software licenses using the software is a "de-facto" agreement (with court support, at least under US Law). So if you create something under One D&D's OGL you are de-facto agreeing that anything you made under 1.0 or 1.0A has been replaced with 1.1. This means that if, say, Paizo published ONE adventure for One D&D under OGL 1.1 then they just handed ALL of Pathfinder and Starfinder over to Wizards with a perpetual, irrevocable license to do whatever they want. Hence, the "Gotcha." Wizards could, in turn, post a 30-day notice revoking all usage on their website and still reprint anything Paizo made consequence and repercussion free. Although that might get a little tricky with trademark law and it's still a bit of a mess but in theory it could happen.

I don't agree with what you say in this post, in two respects:

First, I think it is highly unlikely that WotC will offer to license the revised SRD on terms that would make all the IP of parties to the new licence (v 11), who are also parties to the existing OGL (v 1.0/1.0a), available to WotC via a royalty-free licence. Of course, as far as the OGC published by Paizo is concerned, WotC already has the opportunity of publishing as much of that as they like under the existing OGL.

Second - and this is moving further from my fields of expertise, but is still something on which I have a modest intuition - I would expect that there is a plausible argument, in US contract and licensing law, that if WotC were to exercise a power of at-will revocation so as to deprive (say) Paizo of the benefits of any licence, then WotC would simultaneously lose its rights to an in-perpetuity royatly-free licence to Paizo's work. Or to put it another way, I doubt that the only tenable construction of the licence terms would be that one party is able to revoke at will while retaining the full benefit, in perpetuity, of the contractual promise made by the other party. (I am not saying that this is knock-down in any sense, only that I would expect there to be a plausible argument here. Of course everything will turn on the details of the drafting of the OGL v 1.1.)

 

[Owen K.C. Stephens]

If this leak is an accurate representation of any of WotC's language regarding OGL 1.1 (either language within the license itself, or language that is similar to a FAQ for OGL 1.1), it represents a serious industry-changing bit of news.
How bad the news is depends on lots of details the leak does not cover. But the worst-case scenario would be very, very bad.
I can't blame anyone who doesn't know Stephen and Mark, and who isn't hearing about this language from multiple independent sources, for being skeptical the legitimacy of this leak.
I do know Stephen and Mark. They are very smart, ethical, good-faith actors within the industry. I am absolutely convinced that they are sure that this is the actual language being used by WotC behind-the-scenes right now, and that their source is someone they know and completely trust.
And, I am hearing the exact same things from other people who aren't going public, but who I also know to be smart, ethical, good faith actors who would have access to people with first-person access to WotC's OGL 1.1 documentation.
And even after all that, I am skeptical. I'm positive none of this is an effort for clickbait glory from Mark or Stephen. And I am sure they trust their source. But I don't know who that source is, and everything I am hearing is second-hand.
But given the character and intelligence of Mark and Stephen, and that I am hearing the exact same thing from multiple independent sources, I'm not dismissing this either. Some of those sources are ringing alarm bells as loudly as they can without putting their careers in jeopardy. Some are very clear that the worst-case-scenario is coming, and that many popular video creators are being pressured to accept the new OGL 1.1 right now, as part of an effort to make it seem fait accompli before it goes public.
I don't have first-hand knowledge that supports this. But the second-hand information I'm getting is extensive and worrying.
I have worked on-staff for WotC, and Paizo, and other companies, and I have seen how the sausage gets made. And it is absolutely possible to me both that WotC would try this, and that they'd decide to use that language when they did so. I have seen other contracts (and, heck, signed some) from WotC and other entertainment companies that include that kind of informal language. It's not the norm, but it does happen.
Maybe Mark and Stephen are wrong. Heck, I hope they're wrong. And even if they aren't, WotC may change the language before it goes public. (And, again, if that is the current language, I hope WotC changes it.)
And even if Mark and Stephen are right and the final language doesn't change, it may not be nearly as bad as it seems out of context. It could be a sub-clause that only kicks in if someone wants to use OGL 1.1 material. There may be some legal nicety that isn't included in the leak, which change what it means.
In the balance, even if the leak is 100% accurate for what is being discussed right now, I think it's more likely than not that the worst-case version of what WotC could try with OGL 1.1 isn't going to happen.
But I'm not confident in that, and my belief should in no way be taken as saying Mark and Stephen are wrong about what the language is right now.

 

[Yora]

What even is an official leak? That would be a press announcement.

My concern is the knock on effects of potentially trying to kill or nerf the OGL for the companies that use It for non-d an d related games. A good example is Open D6. It is released under the old OGL. Aside from a few books like Open Fantasy, the bulk of the books have jack all to do with anything wizards has made. Depending on the tact they tack they take the system could be dead (more so than it already is) . If it is just a 4e situation (the de-authorisation makes signing the new license incompatible with using the old one) no big deal. The handful of Open D6 publisher's that randomly release content can go about their merry way. If they are trying to forcibly upgrade all OGL users by saying the old ones are somehow invalid then open d6 publishers would be potentially bound by the new rules.

No, this can't happen.

Open Game License 1.0a:

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

Whatever a new license may contain, it does not touch these terms of the existing license.

 

[Art Waring]

Maybe Mark and Stephen are wrong. Heck, I hope they're wrong. And even if they aren't, WotC may change the language before it goes public. (And, again, if that is the current language, I hope WotC changes it.)

Exactly what I was referring to in the other ogl thread, that we should be communicating our concerns now before the final draft of the 1.1 is made public, because it will be much harder to change anything once the 1.1 OGL is set in stone.

 

[mamba]

No, this can't happen.

Open Game License 1.0a:

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

Whatever a new license may contain, it does not touch these terms of the existing license.

no, but it changes its authorization status

No idea whether WotC can do that, but it might cost you more to find out than you can afford

 

[Yora]

That would be outside of any actual outside and simply be blackmail by threatening to abuse the legal system with fraudulent lawsuits. They can do that regardless of what a new license my say or not say.

 

[mamba]

That would be outside of any actual outside and simply be blackmail by threatening to abuse the legal system with fraudulent lawsuits. They can do that regardless of what a new license my say or not say.

not sure that makes it any better… also, ‘can’ is a far cry from ‘are about to’

 

[pemerton]

what state's laws govern the OGL? What state law (or federal law) would Black's be looking at to extract the definition of "sublicensee" as it is used in the OGL?

Your question presumes there must be some legally controlling source such as a law for the term sublicense such that the source determines it's meaning.

Most often in contract law it's not a law that determines the meaning of a term but either a) the contract itself or b) case law/precedent.

"Sub-licensee" is not, in itself, a particularly technical term. It refers to someone who (i) is licensed in respect of X, and (ii) was so licensed by a party who was also licensed in respect of X and whose licence included an authority to sub-license. It's similar in structure to the concept of a sub-lease.

I would expect the main issues in sub-licensing, in US law, to be ostensible and actual authority of the sub-licensor. In the present context, I think that would be determined mostly if not exclusively by the terms of the OGL. There may be some relevant general principles too.

 

[pemerton]

IDK, they did similar with 4e. I've seen too many weird corporate stunts to write it off. And if they do set the whole 3rd party sphere on fire and burn it down, it could trigger an FTC investigation into monopolistic practices (not likely, but possible).

It's not a monopoly to refuse to license your IP for free.

 

[Ulorian - Agent of Chaos]

I know that no one on YouTube seems to understand this, but if it's "official," it's not a "leak." And if it's a "leak," it's not "official."

The moment I saw 'official leak' was the moment I knew not to click that link.

 

[Art Waring]

Ok so I have been on this all morning. I have timestamped the video in this post to playback where the youtuber reads what sounds like a direct source email regarding the new OGL, which he claims he received about two to three weeks ago. (I had initially said that this guy was most likely mistaken about the rumor, due to his lack of experience with the 1.0a OGL, but this is very concerning because it matches with the other sources, not to mention that he didn't actually read out the leaked document in his original video, this video has that information).


Summary: The email states that going forward "you cannot earn any income on SRD based dnd content on or after January 13th 2023 without either agreeing to the new 1.1 OGL license, or by striking a direct deal with wotc". I really, really, really hope this is just a rumor...

 

[Yora]

That's one week from now. How would WotC even be able to reach all people using the OGL and SRD content in that time to inform them of these changes? Which it legally can't make to the existing contracts anyway.

 

[Art Waring]

That's one week from now. How would WotC even be able to reach all people using the OGL and SRD content in that time to inform them of these changes? Which it legally can't make to the existing contracts anyway.

While I personally have no idea how they expect this to happen, or if is even legal, it doesn't discount it from being a possibility that they can threaten future publishers with the new 1.1 OGL without having to go to court.

And its not really one week, according to the video they (likely companies that signed the NDA) may have gotten notice up to three weeks ago, giving companies their 30 days notice to sign or essentially vacate.

 

[Nylanfs]

I'd be interested to her Ryan's and David Kenzer's takes on this. AFAIK we haven't seen anything from David, Ryan did update the https://opengamingfoundation.org/ though.

 

[Remathilis]

but it is the lion’s share that makes them a monopoly…

Bullocks. If that's the case, Apple has a monopoly on Smartphones, Microsoft has a monopoly on office software and Google has a monopoly on search engines. You need more than just market dominance, you need a mechanism that stops any competition from challenging you. There are plenty of options for each of the above, even if none of them quite reach the ubiquitous nature of the named companies.

 

[Yora]

Section 9 has the relevant clause - "you may use any authorized version of this Licesne to copy, modify and distrbiute any Open Game Content originally distributed under any version of this license.

I'm with you that I don't see how WOTC can deauthorize OGL 1.0a for existing material (for example if it was deauthorized for SRD 5.1 then it would in effect revoke the whole license, which does seem to go against the terms of the OGL 1.0a license). However, deauthorizing the use of OGL 1.0a for material released under OGL 1.1 would seem potentially doable and would be a statement made so that there is no confusion about whether certain content released under OGL 1.1 could be rereleased by others under OGL 1.0a (the question of whether OGL 1.1 would be legally considered a version of OGL 1.0a at that point might be in contention but outside that I think it would make sense).

If you want to make new 6th edition content unavailable under the new license, all they would have to do is simply call it anything other than Open Game License version 1.1. Just don't claim that the new license is a new version of the old license, and you're golden. You can put whatever you want in the new license with no legal consequences of anything that is in the OGL 1.0a.

 

[mamba]

Bullocks. If that's the case, Apple has a monopoly on Smartphones, Microsoft has a monopoly on office software and Google has a monopoly on search engines. You need more than just market dominance, you need a mechanism that stops any competition from challenging you. There are plenty of options for each of the above, even if none of them quite reach the ubiquitous nature of the named companies.

Apple doesn’t even sell the majority of smart phones (Android does), that is out on its face. MS does have a monopoly on office software.

Being a monopoly is not illegal, abusing that position is

 

[mamba]

If you want to make new 6th edition content unavailable under the new license, all they would have to do is simply call it anything other than Open Game License version 1.1. Just don't claim that the new license is a new version of the old license, and you're golden. You can put whatever you want in the new license with no legal consequences of anything that is in the OGL 1.0a.

so clearly that is not the goal, they want it for all versions

 

[Alzrius]

Weird. Because if they pull the trigger and somehow the OGL actually does go away, that’s a lot of game companies that suddenly either disappear or fall in line, and that’s them directly engaging in anti-competitive behavior and exercising a lot of power over the market.

Anticompetitive practices has a very specific meaning here, which a potential revocation of the OGL v1.0a doesn't come close to meeting.

 

[mamba]

Summary: The email states that going forward "you cannot earn any income on SRD based dnd content on or after January 13th 2023 without either agreeing to the new 1.1 OGL license, or by striking a direct deal with wotc". I really, really, really hope this is just a rumor...

is there a difference between ‘SRD based’ and ‘licensed under the OGL’ ?

Earn any income, including for already released products? Didn’t think this is even possible