Update: I talk about the impact of recent events on me here.
There is been a lot of discussion over whether Wizards can revoke the OGL by de-authorizing it. This came about because of Section 9 of the open game license.
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.
I highlighted in bold the operative section. The theory goes if Wizards de-authorized the license then everybody who ever used OGL 1.0 or OGL 1.0a will be forced to go to OGL 1.1 even folks who made their stuff open content that had nothing to do with any of Wizard's offerings like the d20 SRD, or the d20 Modern SRD, for example, Cepheus, Mongoose Legends and so on.
I am not a lawyer but like any layman, especially one involved in making creative content, I learned enough so I can ask my attorney intelligent questions to make sure what I want to do has all the i's dotted and t's crossed.
What I learned is that while the letter of the contract is important, the courts give great weight to intent. What the parties intending to do to when the license or contract was made. If you google contract law and intent you will find several excellent summaries of what intent means in common law countries like the US.
As for the OGL, this means that the old d20 FAQ becomes highly relevant.
The D20 FAQ captured on April 29th, 2001
While not a legal document it does show the intent of Wizards circa 2001 when they released the OGL.
Q: What is meant by the term "Open Gaming"?
A: An Open Game is a game that can be freely copied, modified, and distributed, and a system for ensuring that material, once distributed as an Open Game will remain permanently Open.
This is further supported by the fact that when Wizards released the highly restrictive Game System License several years later, they did not try to revoke the OGL although they did sunset the d20 Trademark License.
Next, is the fact what is meant by an authorized license? Many contend it means that the OGL can be revoked. Or some like myself, argue that it means that the version had to have been authorized by Wizards at some point. The fact that Wizards does not wish to continue offering it for its own stuff is irrelevant to its use for current and future material.
I believe my point of view is further supported by how ambiguity is handled in the US Courts. A person in 2001 and in 2022 would reasonably assume they can use the OGL and any associated open content as long as they met the terms of the license.
This is further supported by the references in the d20 FAQ to what the term "Free" means in the context of the OGL.
Particularly this
This use of the term "free" is a recognition of the philosophy of the roots of the Open Source software movement. The Free Software Foundation and the GNU Project, founded by Richard Stallman were the first formal efforts to codify the philosophy of Open Source software. It is the preference of the Free Software Foundation and Mr. Stallman to use the term "Free Software" rather than "Open Source", to keep the focus on the idea that the important part of the philosophy is the freedom to copy, modify and distribute computer software, rather than the more utilitarian objective of simply giving users access to the source code.
And the above is supported by the fact that the d20 page referred to the Open Gaming Foundation which is still in existence and has been recently updated.
Section 9 is, in my opinion, is a badly rewritten version of Section 9 of the GNU Public License Ver 2 (the then current version) which reads.
9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
Finally as for Wizards making all open content magically use OGL 1.1 by focusing on authorized licenses. I submit folks are forgetting about
You may use any authorized version of this License to copy, modify and distribute any Open Game Content
That is a choice, if the worst case scenario comes to pass, you can decline to use OGL 1.1 and omit the open content that is not original to your work and then release it other another license or under traditional copyright.
I can't say how things will go but I hope this helps as a more hopeful view of the possibilities than some of the other commentary that is out there.
Update
This was pointed out to me that was in the OGL FAQ as well.
Q: Can't Wizards of the Coast change the License in a way that I wouldn't like?
A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.
This gives weight to my assertion that Section 9 of OGL 1.0a is intended to operate like Section 9 of the GPL rather than a "scrap it" clause.
Also
3 comments:
A very good post. Maybe all those nonsense conversations can be shown this.
In the litigious madness that is the US, it's probably always best to get real legal advice, of course...
But, I have seen the conversation lately and it has become clear that most people have very little knowledge of software licences and how they work. The GNU GPL is, as you wrote, clearly the model for the OGL and it has been very clear from the beginning how these things would work. Also, the fact that there is a FAQ and I remember the conversations when the OGL was released where those behind it had to clarify just these points!
They'd be lucky to enforce their dumb stuff outside of the USA.
It will only take one Judge to make one bad decision based on a less than favorable interpretation of the situation at this point to have it all crash down. A single point of failure does not bode well.
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