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

[S'mon]

I'll point out a few things about contracts and lawyers
1. Not all lawyers are good at their job
2. Lawyers make contracts based on their client's specifications, and stupid clients can make lawyers make stupid contracts

Too true. I remember talking with a TSR lawyer back in the mid '90s. He was tasked with stopping Internet sites from posting fan-created D&D content. Whether or not he truly believed that TSR 'owned' terms like AC and hit points, that's what he was told to say, and he did as instructed. House (employee) lawyers in particular will act on the instructions of their employer, no matter how stupid & irrational.

 

[sigfried]

Contracts, even ones written in plain language, need to be very specific. Vague writing like "...if We somehow stretch Our decision of what is or is not objectional 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." I mean, what the hell does that even mean? Not your guess mind you. Exactly what is the definition of "somehow stretch?" What is "too far?" What constitutes "pushback" or "bad PR?" What does "open to being convinced" mean?

It is an explanation of the line, "You waive any right to sue over Our decision on these issues."

These were contracts that were sent to third parties as part of an outreach to forwarn or negotiate. So they may well include explanatory text regarding the motivation of a given clause. It's basically saying, "Hey don't worry about this clause, we don't mean to screw you, we'd get in trouble if we did, so trust us that this isn't here so we can abuse you and you have no recourse."

 

[Maxperson]

It is an explanation of the line, "You waive any right to sue over Our decision on these issues."

It's not. It's too vague to be an explanation. If that's really what they wrote, they lose if they try to enforce it.

 

[Ulorian - Agent of Chaos]

Is this possible: the text that was leaked is a preliminary version of the final product. It's a test balloon floated as part of a negotiation i.e. here's my initial proposal... now what's your counter-proposal? A bit of back and forth, then we have a final product. Maybe this leak occurred as a form of leverage: the hope being the negative PR towards WotC would tilt the table away from WotC's position.

 

[S'mon]

Is this possible: the text that was leaked is a preliminary version of the final product. It's a test balloon floated as part of a negotiation i.e. here's my initial proposal... now what's your counter-proposal? A bit of back and forth, then we have a final product. Maybe this leak occurred as a form of leverage: the hope being the negative PR towards WotC would tilt the table away from WotC's position.

I doubt it was deliberately leaked by WoTC.
I do think it very likely that the leaked text will never see the light of day as the final OGL 1.1. If I were WoTC I'd be in very intense internal discussions right now, considering all options including junking OGL 1.1 and starting over, likely with a mea culpa. Or they could go scorched-earth nuclear. We'll see.

 

[S'mon]

I doubt it was deliberately leaked by WoTC.
I do think it very likely that the leaked text will never see the light of day as the final OGL 1.1. If I were WoTC I'd be in very intense internal discussions right now, considering all options including junking OGL 1.1 and starting over, likely with a mea culpa*. Or they could go scorched-earth nuclear. We'll see.

*Most likely I think is a blander statement "Following feedback from (3PPs), we have decided to revise the new licence to better meet the needs of all parties".

 

[jgbrowning]

There is no "WotC." There are people who work there. This all feels very much like two or three top execs who don't get the world of open source having a knee jerk reaction and the power to not listen to arguments to the contrary.

I'm getting that feeling as well although I have no confirmation. I mean...

"OCTOBER 4, 2022 PAWTUCKET, R.I.–(BUSINESS WIRE)–Hasbro, Inc. (NASDAQ: HAS), today announced Dan Rawson has joined Wizards of the Coast in a newly created role as Senior Vice President of Dungeons & Dragons. Mr. Rawson, formerly COO of Microsoft Dynamics 365,"

They just put an ex-microsoft exec into a newly created role of Senior VP of D&D in early October.

joe b.

 

[Ulorian - Agent of Chaos]

I doubt it was deliberately leaked by WoTC.
I do think it very likely that the leaked text will never see the light of day as the final OGL 1.1. If I were WoTC I'd be in very intense internal discussions right now, considering all options including junking OGL 1.1 and starting over, likely with a mea culpa. Or they could go scorched-earth nuclear. We'll see.

I meant leaked by someone to whom WotC distributed the draft version of the OGL.

 

[Bagpuss]

After reading that

Physical books and PDFs are the ONLY content covered in the OGL 1.1. “It does not allow for anything else, including but not limited to things like videos, virtual tabletops or VTT campaigns, computer games, novels, apps, graphics novels, music, songs, dances, and pantomimes."

Of course the immediate question I'm sure everyone was concerned about was what Dungeons and Dragons Pantomines they had missed under the OGL 1.0

So far I've found this one...

Dungeons and Dragons the Panto! - Podvine

126 likes, 0 comments. This is the live recording that we made at Dragonmeet 2022 with Emily and Shamini of the RPGeeks podcast! It was a ton of fun to m..

podvine.com

 

[pemerton]

But the definition of Use relates to Derivative Material of Open Game Content, not Open Game Content itself.

I don't agree.

Use is relevantly defined as "use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content". I think the "otherwise" is referring to "otherwise than editing, formatting, modifying or translating". I don't think that it reaches all the way up the definition to govern "use", "Distribute" and "copy". Because (for instance) copying OGC is not a mode of creating derivative material of the OGC, as best I'm aware.

If the OGL's leaning in part on the U.S. Copyright Office's definitions of "derivative works", then the intent might be to allow licensees to only sublicense any Derivative Material (derivative work) that the licensee contributed to the OGC, excluding the OGC material contributed by WotC, i.e. the material in the SRD itself.

I assume it's drawing on the statutory definition of derivative works where it uses that phrase: Chapter 1 - Circular 92 | U.S. Copyright Office

As far as the authority to sub-license is concerned, section 4 extends it to the Open Game Content, which is not confined to the OGC that the licensee contributes (section 5 calls that out distinctly). At least, that's how it reads to me.

The community has long held that OGL 1.0 and 1.0a licensees have the right to continue using the SRD (any version published under any prior version of the OGL) and - in the hypothetical I've been referencing - the ability to sublicense SRD content to which WotC holds the copyright. Maybe that's right, but has it ever been tested in court? WotC now seems like it's in the mood to do just that.

I believe there are cases on software open source licensing. I don't know what they say, nor what they tell us about the OGL v 1.0/1.0a.

The hypothetical that sparked this part of the thread contemplated that an OGL 1.0a licensee could sublicense OGC found in the SRD in perpetuity, provided that the licensee had published SRD-based OGC prior to the "non-authorization" (to use your term) of the OGL 1.0a . That's the scenario I've been asking about, anyway.

My view is that WotC would somehow have to revoke the licensor's rights to sub-license to others. Given that those rights are contractually granted, I'm not really seeing how that would work. There's been some more discussion of this, through a contract law lens, in the "PSA" thread.

The best post there, in my view, is this one: Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

That poster says the following:

as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

I'm not able to take the analysis any further than this - @bmcdaniel is a better US contract lawyer than I am.