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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
- Thread starter DavyGreenwind
- Start date
bmcdaniel
Adventurer
I note that a purported OGL 1.1 has been posted here: http://ogl.battlezoo.com/ For purposes of convenience, I will assume that this is a document that WOTC has proposed. I also note that it contains two different agreements: one titled "OGL 1.1 Non-Commercial" and one titled "OGL 1.1 Commercial." I will use those names to refer to the agreements, and when discussing both I will use "OGL 1.1 Both".
I will make the following pertinent points:
1. Nature of OGL 1.1 Both Similar to OGL 1.0(a), both OGL 1.1 Non-Commercial and OGL 1.1 Commercial are bilateral agreements between WOTC and the licensee. (Technically multilateral since one counterparty is defined as "Wizards of the Coast, and its parents, affiliates, suppliers and distributors"). In other words, unless OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement that binds the licensee, it does not affect the licensee.
2. De-Authorization of OGL 1.0(a). Pursuant to Section VIII (A) of OGL 1.1 Non-Commercial and Section X (A) of OGL 1.1 Commercial, the licensee agrees that OGL 1.0(a) is no longer authorized, and thus the licensee can no longer use OGL 1.0(a).
3. Offer and Acceptance of OGL 1.1 Both. As a result of the foregoing, a key question for current users of OGL 1.0(a) is whether OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is an agreement between the user and WOTC. If OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement that binds the user, then the user can longer rely on OGL 1.0(a). Contrariwise, if OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial does not bind the user, then (absent other considerations), the user can continue to rely on OGL 1.0(a). As background to determining whether OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement for the user, it is necessary to discuss offer and acceptance.
One of the requirements for forming an agreement is mutual assent to the terms of the agreement. This is manifested by "offer" and "acceptance" of the offer. In formal settings, an offeror will invite acceptance by signature of a formal written agreement. However, an offeror may invite acceptance by action. (In the world of contract law, this is often called "acceptance by performance.") For example, if Mr X. posts a sign that says "I lost my dog. $100 reward to anyone who brings my dog to me." Mr. X is making an offer to enter into an agreement which can be accepted by the return of his dog. In fact OGL 1.0(a) invites acceptance by performance: "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License." Similarly, OGL 1.1 Both (in the preamble) also invites acceptance by performance. OGL 1.1 Non-Commercial states "Any non-commercial use of Licensed Content (defined below) is subject to this agreement; by using Licensed Content in this manner, You agree to the terms of this agreement."; and OGL 1.1 Commercial states "Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."
In matters of contract law, it is often said that the offeror is "master of his offer"; that is to say that the offeror can specify the manner in which the offer can be accepted and any variation from the method of acceptance would not create a contract. For example, if an offer says that it can be accepted by signing and dating an agreement, and the offeree signs but doesn't date, then no valid agreement is formed and the offeror is not bound by the agreement.
However, courts do impose limits on acceptance by performance. Consider this example: Mr. X publishes an agreement that states "Mr. X hereby licenses you to use my artwork. In exchange, you agree to mail me $1 million. You may accept this offer by going to sleep before December 31, 2023." I have no doubt that every court that considered this would determine that there has been no offer and acceptance. The doctrinal basis used in different jurisdictions may vary. Indeed, because the example is so outrageous, it is likely that the doctrinal basis is under-theorized as a matter of law.
(A side issue: because the offeror is "master of his offer," it is important to consider the posture of whether acceptance is being used offensively or defensively. Returning to the example above, if a licensee wants the agreement to be effective (i.e. licensee wants to use the artwork and is willing to pay $1 million), a court may find the agreement to exist; whereas if a (potential) licensee wanted to disclaim the agreement (i.e. licensee not willing to pay $1 million and doesn't care about the artwork), the same court may find the agreement does not exist. The asymmetry arises because the offeror specified the means of acceptance, not the offeree. In a sense, the offeror's method of acceptance is being held against him.)
From the perspective of the user of OGL 1.0(a) which wishes to reject OGL 1.1 Both, the under-theorization of the doctrinal basis for rejection of performance should not matter very much. Recall that offer and acceptance is a method to demonstrate mutual consent to an agreement. If the user unambiguously demonstrates that it does not assent to the agreement which is OGL 1.1 Both (e.g. by a formal letter to WOTC) then WOTC's purported acceptance by performance would be irrelevant. Of course, putting WOTC on notice in this manner is "poking the bear" and the user should take that into account.
----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
I will make the following pertinent points:
1. Nature of OGL 1.1 Both Similar to OGL 1.0(a), both OGL 1.1 Non-Commercial and OGL 1.1 Commercial are bilateral agreements between WOTC and the licensee. (Technically multilateral since one counterparty is defined as "Wizards of the Coast, and its parents, affiliates, suppliers and distributors"). In other words, unless OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement that binds the licensee, it does not affect the licensee.
2. De-Authorization of OGL 1.0(a). Pursuant to Section VIII (A) of OGL 1.1 Non-Commercial and Section X (A) of OGL 1.1 Commercial, the licensee agrees that OGL 1.0(a) is no longer authorized, and thus the licensee can no longer use OGL 1.0(a).
3. Offer and Acceptance of OGL 1.1 Both. As a result of the foregoing, a key question for current users of OGL 1.0(a) is whether OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is an agreement between the user and WOTC. If OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement that binds the user, then the user can longer rely on OGL 1.0(a). Contrariwise, if OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial does not bind the user, then (absent other considerations), the user can continue to rely on OGL 1.0(a). As background to determining whether OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement for the user, it is necessary to discuss offer and acceptance.
One of the requirements for forming an agreement is mutual assent to the terms of the agreement. This is manifested by "offer" and "acceptance" of the offer. In formal settings, an offeror will invite acceptance by signature of a formal written agreement. However, an offeror may invite acceptance by action. (In the world of contract law, this is often called "acceptance by performance.") For example, if Mr X. posts a sign that says "I lost my dog. $100 reward to anyone who brings my dog to me." Mr. X is making an offer to enter into an agreement which can be accepted by the return of his dog. In fact OGL 1.0(a) invites acceptance by performance: "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License." Similarly, OGL 1.1 Both (in the preamble) also invites acceptance by performance. OGL 1.1 Non-Commercial states "Any non-commercial use of Licensed Content (defined below) is subject to this agreement; by using Licensed Content in this manner, You agree to the terms of this agreement."; and OGL 1.1 Commercial states "Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."
In matters of contract law, it is often said that the offeror is "master of his offer"; that is to say that the offeror can specify the manner in which the offer can be accepted and any variation from the method of acceptance would not create a contract. For example, if an offer says that it can be accepted by signing and dating an agreement, and the offeree signs but doesn't date, then no valid agreement is formed and the offeror is not bound by the agreement.
However, courts do impose limits on acceptance by performance. Consider this example: Mr. X publishes an agreement that states "Mr. X hereby licenses you to use my artwork. In exchange, you agree to mail me $1 million. You may accept this offer by going to sleep before December 31, 2023." I have no doubt that every court that considered this would determine that there has been no offer and acceptance. The doctrinal basis used in different jurisdictions may vary. Indeed, because the example is so outrageous, it is likely that the doctrinal basis is under-theorized as a matter of law.
(A side issue: because the offeror is "master of his offer," it is important to consider the posture of whether acceptance is being used offensively or defensively. Returning to the example above, if a licensee wants the agreement to be effective (i.e. licensee wants to use the artwork and is willing to pay $1 million), a court may find the agreement to exist; whereas if a (potential) licensee wanted to disclaim the agreement (i.e. licensee not willing to pay $1 million and doesn't care about the artwork), the same court may find the agreement does not exist. The asymmetry arises because the offeror specified the means of acceptance, not the offeree. In a sense, the offeror's method of acceptance is being held against him.)
From the perspective of the user of OGL 1.0(a) which wishes to reject OGL 1.1 Both, the under-theorization of the doctrinal basis for rejection of performance should not matter very much. Recall that offer and acceptance is a method to demonstrate mutual consent to an agreement. If the user unambiguously demonstrates that it does not assent to the agreement which is OGL 1.1 Both (e.g. by a formal letter to WOTC) then WOTC's purported acceptance by performance would be irrelevant. Of course, putting WOTC on notice in this manner is "poking the bear" and the user should take that into account.
----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
Last edited:
robconley
Hero
Then cite the key cases from a common law country that state that there are other ways of terminating a license other than via the explicit termination clause. The nuances are important.
Laypeople and lawyers were saying that you needed irrevocable to make a perpetual license stick. But when it was dug into we saw that
- It is a relatively recent concept with a key case ruled in 2010 after the creation of the OGL.
- That the content wasn't that you needed to have irrevocable as part of a perpetual license grant but rather a termination clause still applied despite the perpetual license grant.
Siltoneous
Explorer
Took a look at the thing during the lunch break. I have a friend who's a lawyer, that's the extent of my legal knowlege. But even my ignorant eye can see some real OMG's in that document. Like this one from 2
)
"What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project."
Holy c*ap ('Hooley dooley' for you Ausies. )
GMforPowergamers
Legend
I guess that's it... they can sell what they have in inventory but not make new... anything, unless they agree. (until someone stops this in a court that some say is a foregone conclusion others say can't happen but most agree will be hard and no one knows for sure what will happen)
Greg Benage
Legend
@David Spake Keep in mind, that's in the propaganda -- not in the license itself.
GMforPowergamers
Legend
how do you separate the two?
jgbrowning
Hero
Yep. There's even ambiguity there. When I got to WotC I only see see 5e content as SRD content.
joe b.
Greg Benage
Legend
The propaganda is under a "COMMENTS:" subhead.
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