Legal Discussion of OGL 1.2

[Dausuul]

So... I'm a bit confused. (Not a lawyer.)

They say 1.0a remains valid for already published material. But 1.0a both allows and requires the licensee to offer the same agreement (OGL 1.0a) for sublicensing. And it expressly forbids modifying its own terms. If any instance of 1.0a remains valid, then both those provisions would remain in force.

Can anyone versed in legal matters see any way that Wizards could legally prevent sublicensing from, say, d20srd.org? Or are they now relying entirely on fear and the cost of litigation?

 

[Myrdin Potter]

Ignore that minor stuff folks: pay attention to what WotC is doing and why. Why are they releasing the 5.1 SRD under 1.2 -- when they already did this under OGL 1.0a?

Pay attention:

View attachment 273139

Their VTT Tabletop Policy is at page 6. Here is the reason we are having this discussion in the first place. It's because of Foundry VTT and WotC's own planned 3d VTT, which they intend to sell at a monthly subscription rate, instead of, you know, FREE:

So we have: View attachment 273144

Now, I know that most of you aren't familiar with what Foundry VTT can do. I'd have to make a video of my own game content that uses many of these features which are supported via add-on modules to Foundry VTT (and which are, in turn, supported by artists providing animations monthly via Patreon).

When my PCs play in one of my Foundry sessions? Their characters are represented by top-down sprites. When those characters make an attack? There is a corresponding animation that is triggered, depending on the weapon they use, and if its hits or misses and a sound FX plays to match the strike, miss or what have you. When my PCs or bad guys cast spells, or a dragon breathes? There is usually an animation which plays, an accompany .ogg sound effect which is triggered -- and COOL STUFF HAPPENS on the screen.

This eye/ear candy is what WotC wants to sell with its forthcoming 3d VTT, to DMs and players alike, for a monthly subscription to everyone at the table. They don't care (much) about Roll20 and FG - and they control those under license anyway. Those VTTs are just not that capable -- they are not an alternative good to the VTT that WotC plans to sell.

But Foundry VTT IS capable of those things. It's capable of them RIGHT NOW. There is a 3d suite of add-on modules sold via a patreon by theripper93. It supports 3d in Foundry. There are similarly, a suite of animations for Foundry VTT by a pair of French brothers, Jules and Ben, that have amassed quite a collection of animations over the past 2 years. The magic missile which follows and hits the target? That's Foundry's Spell animations. It does a whole crap-ton more than that, too.

They don't want you to have that eye candy unless you buy it from them. THAT is why we are here, it's why we've been here all along. They don't want people to have that option to play with that eye candy for FREE, they want you to have to pay a monthly subscription for that.

It's akin to WotC complaining that my minis are painted too well, my 3d terrain on the tabletop is too slick and immersive, my maps are too good, my music and sound FXs are too good, my weather, fog, and lighting effects in Rime of the Frostmaiden are too good. It's all too good. Only they should be able to make something that looks that good - so they can charge me for it (and lots of other people, too).

At its heart, this is about Foundry VTT, because it's too good -- and trying to stop a fork of 5e so that WotC does not end up competing with a version of D&D all over again. They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

Other than being an over reach of describing Foundry as the only solution that adds in extra graphic and sound triggers (Fantasy Grounds has pretty detailed sound triggers before Foundry was out and there is reasonable amount of animation built in now and the system is certainly capable of what WoTC is trying to restrict), the base point is 100% valid.

They are trying to remove completion to their VTT product. That is the primary driver to this new OGL

Steel_Wind and I disagree about some of the background fluff, but I fundamentally agree with him that the intention is anti-competitive and designed to stop others from matching or surpassing the features they want to sell.

 

[GreyLord]

Where can a find OGL 1.2?

Someone has probably already replied, but if not

Current Draft OLG 1.2 link

 

[Maxperson]

See, that clause is fine. It means that the licence can only be modified to the minimum extent required to make it functional.

It's the part where they can simply decide to dissolve the entire licence that's the problem. That would leave all OGL 3PPs with no legal framework within which to publish their content, and it could be done with zero notice.

A severability clause isn't there to allow WotC to just end portions or all of the license. A severability clause is there to protect the license in the event that a judge finds a portion of the contract to be unenforceable or invalid. With the severability clause, the invalid portion is the only part of the license that gets nuked. Without a severability clause, if one portion gets nuked, it all gets nuked.

 

[S'mon]

So... I'm a bit confused. (Not a lawyer.)

They say 1.0a remains valid for already published material. But 1.0a both allows and requires the licensee to offer the same agreement (OGL 1.0a) for sublicensing. And it expressly forbids modifying its own terms. If any instance of 1.0a remains valid, then both those provisions would remain in force.

Can anyone versed in legal matters see any way that Wizards could legally prevent sublicensing from, say, d20srd.org? Or are they now relying entirely on fear and the cost of litigation?

I think they are relying on FUD, yes.

They have to know that the 3PP ecosystem cannot function like this. The continued use of the OGL 1.0 to create new works from old remains vital.

 

[MarkB]

A severability clause isn't there to allow WotC to just end portions or all of the license. A severability clause is there to protect the license in the event that a judge finds a portion of the contract to be unenforceable or invalid. With the severability clause, the invalid portion is the only part of the license that gets nuked. Without a severability clause, if one portion gets nuked, it all gets nuked.

Except that this one allows them to nuke the entire thing at their own discretion.

 

[The Stray]

Except that this one allows them to nuke the entire thing at their own discretion.

I noticed that. And no one else I've seen has talked about it...probably because it's tacked on to a regular ol' Severence clause. This is there to fool lawyers.

 

[Maxperson]

Except that this one allows them to nuke the entire thing at their own discretion.

Gotcha. I didn't read it closely. That's not cool at all.

 

[Saracenus]

Ted from Nerd Immersion has done a breakdown of the "OGL" 1.2 Draft with Noah Downs, Esq. (AKA MyLawyerFriend). Noah works and his firm work on IP for digital and tabletop creatives. You can read his Medium post here: Let’s Take A Minute to Talk About D&D’s Updated Open Game License (OGL 1.2).

I have started the vid 2:30 minutes in because they were having technical difficulties with Zoom and it really doesn't begin until then. Noah's segment finishes up around the 1 hour, 10 minute mark.

Some quick takes:

• Most of it is standard boilerplate common to modern licenses used today.
• They do have the word "irrevocable" in the OGL 1.2 but they put a bunch of weasel language around it that changes the legal definition of the term via the contract. So, if you sign it in its current form, you are agreeing with their version of "irrevocable."
• It is highly likely that the OGL 1.0a is going to be revoked and only a lawsuit in court is going to determine it's fate. Noah doesn't want Paizo to be the plaintiff but support financially another party in their case so that Paizo doesn't go down if the courts give WotC/Hasbro everything.
• EDIT (Add): There is some tricky stuff in this draft. Noah referrers to as a "four corners" language that basically means, if it is not in the contract it doesn't exist. So they say there are no royalties in the OGL draft but it does not explicitly say that there will never be royalties. So, whatever they say on D&D Beyond, or Twitter, or on a phone call means jack all if it isn't in writing explicitly in the new OGL. This is a section I need to re-watch as it seems more complicated then I am writing here.
• Ultimately, this was light years more professional than the last "draft" and they do seem to be listening. Still not where it needs to be but better.

I watched it live and I will have to watch it again to understand some of Noah's points but overall it is an informed opinion on the subject.

 

[Matt Thomason]

At its heart, this is about Foundry VTT, because it's too good -- and trying to stop a fork of 5e so that WotC does not end up competing with a version of D&D all over again. They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

And you know, there's a commonly-used trick to get around the viral nature of Open Source licensing that applies here.
Hypothetical: I'm writing a VTT, but want to include some functionality from an open-source library that requires anything using it also be open-sourced. I do not wish to open-source my VTT.

So:
1) I release my completely closed VTT without said functionality.
2) I create a separate program that performs that functionality with the open-source library, and open-source that.
3) I build interfaces between my VTT and my open-source program allowing the former to communicate with the latter, e.g. via Named Pipes.

I see a potential way to achieve that with the 1.2 license's restrictions on VTTs, too.

1) Release the bells-and-whistles VTT, but it doesn't have 6e rules. Include a system within the VTT to read a text file of rules. Probably something like XML.
2) Release, under the OGL, your new static text file of rules and game data. This file does nothing by itself, it isn't "dynamic", it doesn't display graphics, it doesn't do anything. It's just a text file that translates the SRD language from human-readable into machine-readable.
3) End users combine the perfectly legal 1) with the perfectly legal 2).

Obviously, do NOT do this without getting proper legal advice to ensure it is 100% legal first.
And, disclaimer, I absolutely do not support or intend this to be used in an illegal manner, only to legally comply with WotCs OGL 1.2 and the new VTT policy.

Also, this is very similar to the idea of creating a system-neutral sourcebook for your world that requires no license whatsoever, then a 5e supplement with stats+rules under the OGL, a Savage Worlds supplement under their license, and so on.