Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[Prime_Evil]

when WotC enters into a licensing agreement with X, on the terms stated in the OGL, then of necessity it has also authorised them to reproduce the copyrighted text of the OGL - because otherwise X would not be able to fulfil the agreement that WotC and X have made between themselves. The OGL also permits X to transfer this authorisation down the chain of sub-licenses - and this is a permission that WotC have conferred on X by entering into the agreement with them.

Every use of the OGL v1.0a contains a Section 15 copyright notice. And the first entry must be "Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc." Does this imply every use of the OGL is a licensing agreement with WotC? Does this mean it is part of a valid chain of sub-licenses, thereby ensuring authorisation to reproduce the OGL?

I realise I may be misinterpreting this. It is far outside of my area of expertise...

 

[Myrdin Potter]

It means that right now, WotC sees that it makes more -- far more -- per sale on DDB than it would as a royalty on a sale through Roll20 or FG. In other words, it is in their financial interest to do nothing and look the other way.

So Foundry is depending on another to decide it is not worth their while to change the "deal". Kind of like everyone using 1.0a.

They do not make a royalty, btw. They sell their books. Yes, digital, yada yada, but they sell the book for the same price on D&D Beyond via FG and Roll20. Considering what Amazon prices hardcovers which they have to make a physical copy of, they probably do quite well on the digital sales.

For Foundry, the material is scraped from a previous sale and used.

BTW - FG used to have the same 3rd party type tool for 4e. Probably still exists. This is not a virtue contest.

When I started using VTT only FG had the license which reduced my time to prepare to the least out of the other options. Foundry was not even there. Out of all the newer VTT, I like Foundry the most.

 

[Siltoneous]

This probably isn't right, which is why I'm replying to it.

If a 3PP who is currently a party to a licence agreement with WotC in terms of the OGL v 1.0a wants to continue to rely on their contractual rights, they don't need to bring a case against WotC to prove anything. All they have to do is keep publishing.

If WotC commences action against them for copyright infringement, then that party would plead their contract in defence. As has been discussed upthread, that may be expensive - even prohibitively so.

On the other hand, if WotC does not commence - eg because it recognises that it would lose on the merits and doesn't want to open up the door to that possibility - the publisher can just keep publishing.

To be clear, this post is not attempting to give anyone legal or commercial advice. The point is that, in a common law system (and I would guess civil law systems also), a person who has the benefit of a contractual right does not need to go to court to seek a declaration of right in order to lawfully act in reliance upon their right.

Thank you for the clarification, and it's a shame that I stated my point so badly that you needed to correct it. Honestly, the closest I come to legal issues is when daughter and wife watch "All Rise".

I was attempting (poorly it seems) to posit that WoTC could take the course of action hinted at by post #214, now that the we may have some understanding of WoTC's audacious scope.

For clarifications sake, lets suppose I had some adventure that was published under the OGL 1.0a, and I sold that product through a storefront (fictionally) called RFS. The aim of my post was to suggest that WoTC could simply take the matter of the 'unlicensed material' to the owners of the 'RFS' storefront, and tell them to remove it (based on WoTC's interpretation of the OGL 1.1 language). Now one could assume that the RFS would have/seek legal advice. However wouldn't that put RFS's legal representatives in the position of having to ascertain a bunch of legal issues regarding OGL 1.0a material? I just can't see some site that sells PDFs having the where-with-all, much less the funding to do something like that. However I could very well see them saying that it's an unsettled legal matter between WoTC and myself, and until it's settled, they can't do anything about it. Thus WoTC is able to assert the claim, but not directly to me, but in such a way that I'd be forced to have to contact them.

Now, Steel_Wind suggested (in post #213) this kind of behavior might invoke class-action lawsuits, so maybe I just misinterpreted the threat of that kind of action. Or it could be that WoTC is saying damn the torpedoes, lets settle this once and for all; Class Action lawsuits be damned.

Lastly, we can't discount the possibility that it could simply be in the RFS commercial interest to agree to a WoTC's offer that was in their best interest, but stipulated that sale of 1.0a material would not be allowed. But I assume that's a different matter than the one I outlined above.

 

[robconley]

Here is a link to the text of the license everybody talking about. It is badly formatted because the originals apparently can be traced back to individual NDAs. So this is basically a cut and paste job.

http://ogl.battlezoo.com/

 

[pemerton]

Every use of the OGL v1.0a contains a Section 15 copyright notice. And the first entry must be "Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc." Does this imply every use of the OGL is a licensing agreement with WotC?

My view is no. I really am sorry to harp, and I hope I'm not coming across as rude, but your use of "must" is another example of treating the licence as a statute.

The actual force of that "must" is that it is a requirement imposed by a contract. And in your case, the contract is between you, Mongoose and Jason Kemp. Each of the three of you has agreed that, under the appropriate conditions, you can copy one another's work provided that you include a statement of the terms of your agreement, including a notice that WotC owns the copyright in that text.

This does not mean that you have entered a licence agreement with WotC.

You and I could enter into a contract where you promise to send me an exact duplicate (say, a photocopy) of your copy of Mongoose Traveller. And I promise to send you an exact duplicate of my copy of Prince Valiant. Each of the documents we've promised to send one another would include a copyright notice. But that wouldn't make use licensees of the publishers of those rulebooks. It would just make us copyright infringers!

Hence why I offered some possible pathways to argue that, in your case, you are not infringing WotC's copyright because you enjoy some sort of permission from them.

 

[Mistwell]

A brief thought experiment.

You're a DM. You run a game for friends. I will assume you also don't run your game using only adventure paths or modules, you make your own adventure scenarios. Maybe your own campaign. You run a game people find entertaining, and you charge your players fair market value for your entertainment and they gladly pay you for it!

No?

You do it for... Free? Why? Isn't your labor worth it? Isn't the time you invest in making your own material worth as much as any writer?!

Maybe it's because you derive income from another source so that your labor as a dungeon master isn't worth monetization. Perhaps if more people were free of the shackles of worrying about food and shelter, they could make art and entertainment for non-monetary reasons. Artists would paint, directors would make movies, writers would write and they could do it for expression, not material gain.

Maybe such a world doesn't have someone who can make Avenger's Endgame, but ask yourself if that's really all that bad? It also doesn't have someone who can destroy an entire swath of game designers in one bad 9000 page legal document.

Anyway it's beyond the scope of this thread. I just want to point out that art and entertainment does not need a profit motive to be made, and the abolishment of such profit motive would not necessarily be the end of art.

Even inexpensive movies and television shows are horribly expensive. Books can take take years and even decades to write full time. D&D is so popular BECAUSE it can be done using pen and paper, or free online services.

Even in the Soviet Union, artists and entertainers directly were paid for their work, and nobody could just steal their works.

Yes, such a world would be terrible.

 

[pemerton]

Thank you for the clarification, and it's a shame that I stated my point so badly that you needed to correct it. Honestly, the closest I come to legal issues is when daughter and wife watch "All Rise".

I was attempting (poorly it seems) to posit that WoTC could take the course of action hinted at by post #214, now that the we may have some understanding of WoTC's audacious scope.

For clarifications sake, lets suppose I had some adventure that was published under the OGL 1.0a, and I sold that product through a storefront (fictionally) called RFS. The aim of my post was to suggest that WoTC could simply take the matter of the 'unlicensed material' to the owners of the 'RFS' storefront, and tell them to remove it (based on WoTC's interpretation of the OGL 1.1 language). Now one could assume that the RFS would have/seek legal advice. However wouldn't that put RFS's legal representatives in the position of having to ascertain a bunch of legal issues regarding OGL 1.0a material? I just can't see some site that sells PDFs having the where-with-all, much less the funding to do something like that. However I could very well see them saying that it's an unsettled legal matter between WoTC and myself, and until it's settled, they can't do anything about it. Thus WoTC is able to assert the claim, but not directly to me, but in such a way that I'd be forced to have to contact them.

Now, Steel_Wind suggested (in post #213) this kind of behavior might invoke class-action lawsuits, so maybe I just misinterpreted the threat of that kind of action. Or it could be that WoTC is saying damn the torpedoes, lets settle this once and for all; Class Action lawsuits be damned.

Lastly, we can't discount the possibility that it could simply be in the RFS commercial interest to agree to a WoTC's offer that was in their best interest, but stipulated that sale of 1.0a material would not be allowed. But I assume that's a different matter than the one I outlined above.

I agree that if 3PPs are dependent on third party facilitators who are themselves liable to receiving threats of litigation from WotC, that complicates things.

 

[Mistwell]

Here is a link to the text of the license everybody talking about. It is badly formatted because the originals apparently can be traced back to individual NDAs. So this is basically a cut and paste job.

http://ogl.battlezoo.com/

It's really, truly NOT the text of the license. That is the summary text in non-legal language which WOTC sent people to "help them" understand what the actual license says (which is a terrible idea by the way - from a legal perspective). It came with links to the actual text, which have been removed because those links could be traced. This is, most assuredly, not the text of the actual license.

 

[pemerton]

Except it wasn't Wizards who transferred me the rights but rather Matt. I get that it is their copyrighted material. Matt had perpetual permission to use and sublicense that content. Wizard revokes the OGL 1.0a for their content and terminates the license. That means Section 13 comes into play. Matt loses the right at the very least to make any new content based on the formerly open content of Wizards.

However, in accordance with Section 13 it doesn't terminate the sublicense that I gained from Matt. I received the right to use Wizard content from Matt. Which Matt can revoke if Wizard's theory is upheld. But in accordance with section 13, Matt sublicense is still alive.

This makes no sense to me. If WotC has the power to unilaterally end their licence to Matt, they have the same right against you.

To put it another way: I can't see any pathway to an argument that says that Matt can lose the right from WotC at their whim and yet his sub-licensing to you is irrevocable. Whatever basis - in this hypothetical - that WotC are relying on vis-a-vis Matt would apply equally to you (as per the OP, it would be some sort of claim to rescind the agreements on which WotC had licensed its IP to OGL parties).

Look I get what you said earlier and I thought we all agree that the issue of sublicensing is unsettled. I can how your interpretation can hold. But there is that pesky independent sentence in Section 13 mucking it up.

For the reasons I've just given I don't agree. To put it yet another way: any argument that established that section 13 is so robust that it protects your rights in the scenario you describe, would (as best I can intuit) also be an argument that WotC has no power to unilaterally terminate its agreement with Matt.

It occurred to me that if you look at Section 9.

It is in two parts
Part 1
Wizards or its designated Agents may publish updated versions of this License.

Part 2
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.

They are not dependent clauses according to the rules of grammar.

So the argument can be made that at one time Matt was authorized to grant me the right to use not only his original content but Wizard's content as well. While Wizards can withdraw their own authorization they can not withdraw Matt's authorization.

"Authorized version of this License", as that phrase appears in what you have labelled Part 2, means "version of this Licence published by WotC or one of its designated agents". Matt is not a designated agent of WotC and is not doing any authorising within the scope of section 9.

the plain meaning of this means that anytime I read distribute, I can consider it to encapsulate licensing as well. Since Matt Finch was authorized by Wizard to grant a sublicense to their content in 2009. That if Wizard's theory is upheld, only Matt can deauthorize that license grant to myself. As Matt's license to me exists independently of Wizard's license to Matt.

Again I get this is all wrapped up in ambiguity and the law is not really equipped to deal with altruistic licenses like the OGL.

In my view there is no real ambiguity in the sections of the OGL you are pointing to. Nor in my view is the OGL an altruistic licence - it's a copyright licensing agreement which is amenable to interpretation and operation like any other contract.

When Matt entered into his licensing agreement with WotC on the terms set out in the OGL, they conferred on him a power to sub-license their OGC. Section 9 does not create this power, and says nothing about it other than that, in exercising his power, Matt can choose from any of the variant licences that WotC has promulgated for that purpose. The power is conferred on Matt by section 4, read in light of the definitions found in section 1.

 

[Steel_Wind]

It's really, truly NOT the text of the license. That is the summary text in non-legal language which WOTC sent people to "help them" understand what the actual license says (which is a terrible idea by the way - from a legal perspective). It came with links to the actual text, which have been removed because those links could be traced. This is, most assuredly, not the text of the actual license.

Correct. A few things flow from this:

The so-called OGL 1.1 likely varied in accordance with to whom it was presented. It was specifically tailored for the audience it was delivered to. As it went out under NDA, the recipients weren't supposed to be able to figure out which version they got -- while WotC could figure out who leaked what.

If that is sounding like NOT an "open" license but a "closed" license, that is not some accident of your perception. The so-called "OGL" 1.1, isn't "Open" at all.

It also suggests that WotC is well aware that this is going to cause a $hit-storm, to be blunt, and so they left themselves room to stick-handle and back-track.

After reading this, I was struck by what somebody might do in 2024 when WotC begins publishing OneD&D and stops publishing 5e (if they do; they might not stop right away).

My first instinct? Pull a Paizo with Pathfinder 1 all over again. Treat the so-called OGL 1.1 as the GSL. Publish a 5e based on the 5.1 SRD, make it all explicitly under the OGL 1.0a, and watch every third party and VTT rush to support your product of the One True Game in your FLGS and Kickstarter, while 6e dies in a fire 3-4 years later as Hasbro insists all is well and that 6e outsold 5e. nods

To do this, you'd need some money. Which means Paizo, really. Would Lisa Stevens dare to do it again?

Maybe? I guess we will find out.