This thread is so that instead of making assumptions (good or bad), we can actually pick out the weak portions of the new OGL proposal and suggest rephrasing or additions to make it better. I see a lot of people who are determined to take a destructive route, but if we approach this from a constructive route, we can actually get most of what we want, right?
So I'll begin:
In regard to the Hateful content issue and Wizards being able to decide what is considered inappropriate, I get their concerns. They have a valid desire to make sure their product is not used to harm others, and they should have the right to act immediately upon those concerns.
My suggestion though, is that they add an unbiased appeals process. If a 3rd party is determining if the content is harmful to Wizards or others, then the action would be upheld. If the content is not, the action is reversed.
We also need to understand that Wizards can be sued for content that they have no control over, so they need to be able to protect themselves too.
So what provisions bother you and how would you fix them in a way that benefits both sides?
Well, my constructive suggestion is that they don't deprecate OGL 1.0a. It's the only thing that can stop the bleeding IMO.
Thats not constructive. One thing that has not changed for Wizards in this whole process is that they intend to stop using 1.0. Giving feedback for 1.2 saying "dont undo 1.0" is like if someone on this forum was looking for constructive feedback on how to make a Fighter that's sneaky and someone said "the only way to do that is dont make a Fighter, make a Rogue." Its not helping with constructing on what has been put forward, just looking to reverse the choice altogether.
Let me be clear, theres no problem with you wanting OGL 1.0a to stay in effect and there is a place and voice for that opinion. There are already metric tons of threads with that idea being supported and repeated to hopefully get WotC attention. This thread, however, is aiming to try and help build up the proposed 1.2 into something worthwhile, not revert back to 1.0a
It's pretty clear at this point that Wizards plans on moving forward with this 1.2/1.X OGL whether we like it or not and we're just gonna have to bite that bullet. I know for a fact that when the survey goes up a lot of people are just gonna go "1.0 or bust". Regardless, we have an opportunity to make the OGL beneficial for everyone involved.
My first suggestion is a complete do-over of their VTT clause, especially the part about animations.
1) Make the OGL explicitly royalty free: As noted by My Lawyer Friend while it doesn't ask for royalties it doesn't explicitly forbid them either. It can't hurt to add this if that's their intent.
2) Removal of waiver of jury trials: I understand this is on shakey legal ground already so just get rid of it. I don't care if it's industry standard. Industry standard has already been shown to be sucky and not enforceable anyway.
3) Don't deauthorize 1.0: I know I know. But with the legal headaches and the vitriol going around and the lack of trust this has created with 3PP it's my constructive suggestion. They're already allowing you to use their trademark "&" with the 1.2 so that should be a great incentive for people to switch over. If it's not oh well. (I really don't want to get into this argument forever and a day but I'll leave it at that)
4) Make 6(f) FAR better: Okay the most controversial (after deauthorization). 1.2 gives far too much power to Wizards and no recourse except that they are nice enough to give you 30 days which is hardly enough time. Include a rider or guide or something with more clear definitions and add an appeals process and/or an arbitration clause (at the minimum) instead of just revoking all rights from the licensee. Ideally I would strike 6(f) altogether but they've locked themselves in on this point and it would be unrealistic to expect them to go back on it.
Well, my constructive suggestion is that they don't deprecate OGL 1.0a. It's the only thing that can stop the bleeding IMO.
Thats not constructive. One thing that has not changed for Wizards in this whole process is that they intend to stop using 1.0. Giving feedback for 1.2 saying "dont undo 1.0" is like if someone on this forum was looking for constructive feedback on how to make a Fighter that's sneaky and someone said "the only way to do that is dont make a Fighter, make a Rogue." Its not helping with constructing on what has been put forward, just looking to reverse the choice altogether.
Let me be clear, theres no problem with you wanting OGL 1.0a to stay in effect and there is a place and voice for that opinion. There are already metric tons of threads with that idea being supported and repeated to hopefully get WotC attention. This thread, however, is aiming to try and help build up the proposed 1.2 into something worthwhile, not revert back to 1.0a
It's a valid and constructive reply and a heartfelt recommendation of a valid response. OGL:1.0 was the very definition of constructive. After the destructive days of "They Sue Regularly"/"T$R", the OGL created an incredibly constructive context in which many creators gave hugely to bring more momentum to the development of D&D. That's a rug that they now want to pull. A constructive suggestion is don't!
Well, my constructive suggestion is that they don't deprecate OGL 1.0a. It's the only thing that can stop the bleeding IMO.
Thats not constructive. One thing that has not changed for Wizards in this whole process is that they intend to stop using 1.0. Giving feedback for 1.2 saying "dont undo 1.0" is like if someone on this forum was looking for constructive feedback on how to make a Fighter that's sneaky and someone said "the only way to do that is dont make a Fighter, make a Rogue." Its not helping with constructing on what has been put forward, just looking to reverse the choice altogether.
Let me be clear, theres no problem with you wanting OGL 1.0a to stay in effect and there is a place and voice for that opinion. There are already metric tons of threads with that idea being supported and repeated to hopefully get WotC attention. This thread, however, is aiming to try and help build up the proposed 1.2 into something worthwhile, not revert back to 1.0a
It's a valid and constructive reply and a heartfelt recommendation of a valid response. OGL:1.0 was the very definition of constructive. After the destructive days of "They Sue Regularly"/"T$R", the OGL created an incredibly constructive context in which many creators gave hugely to bring more momentum to the development of D&D. That's a rug that they now want to pull. A constructive suggestion is don't!
This thread is supposed to be about the new OGL and how to improve it, not whether or not the old OGL should remain in place. Any suggestion that isnt related to the new OGL is not constructive to this thread. You can push for OGL 1.0a to remain in effect AND make suggestions for a stronger OGL 1.2, but this thread is only concerned with the latter.
The only reason I am being so insistent about this is because this thread gives the opportunity to approach the new developments in a direction different from existing threads. I dont want this to be the 100th thread that gets bogged down in the "why not just keep 1.0a" type debate that has been repeated ad nauseum over the past few weeks
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Well, my constructive suggestion is that they don't deprecate OGL 1.0a. It's the only thing that can stop the bleeding IMO.
Thats not constructive. One thing that has not changed for Wizards in this whole process is that they intend to stop using 1.0. Giving feedback for 1.2 saying "dont undo 1.0" is like if someone on this forum was looking for constructive feedback on how to make a Fighter that's sneaky and someone said "the only way to do that is dont make a Fighter, make a Rogue." Its not helping with constructing on what has been put forward, just looking to reverse the choice altogether.
Let me be clear, theres no problem with you wanting OGL 1.0a to stay in effect and there is a place and voice for that opinion. There are already metric tons of threads with that idea being supported and repeated to hopefully get WotC attention. This thread, however, is aiming to try and help build up the proposed 1.2 into something worthwhile, not revert back to 1.0a
Isn't that a constructive suggestion?
They can make a new license if they want, but what I'm suggesting, actually demanding, is that they don't override 1.0a. It may be unrealistic at the point we're at, but it's not unreasonable. There's nothing they can do with 1.2 that appeals to me, if they remove 1.0a
But hey, my constructive suggestion: Do not include abusive clauses that can be used to steal the IP of those who publish under the OGL. That happens with point 3 of OGL 1.2 There they tell you that if they copy your content, you have to prove that they did it knowingly and that it is not "coincidence". You also agree that you can only bring them to trial under their conditions, and as a single person. And why the latter? Well, because Hasbro/WoTC is obviously going to have more financial muscle than you, and the only way you're going to face a lawsuit like that is probably with a class action lawsuit. Oh, and you also waive a jury trial. (these last two things are in 9e and 9g). By the way, if you win the trial, the only thing you could claim is money. In no way can you claim that they stop using your content. I don't know the laws of the USA. But is that clause legal? In any case, it is unfair. My constructive suggestion is to remove it.
One more: 5) Make the severability clause more limited: While the clause that can invalidate the license due to a change of the laws governing contracts or (anything else that impacts it) the fact that this clause kills THE ENTIRE LICENSE rather than a single section is problematic. This invalidation of the entire license doesn't seem to be typical as far as I can tell. This isn't a strong one as its pretty technical but I don't see why it can be more limited. An attorney can probably have a better view than me.
Well, my constructive suggestion is that they don't deprecate OGL 1.0a. It's the only thing that can stop the bleeding IMO.
Thats not constructive. One thing that has not changed for Wizards in this whole process is that they intend to stop using 1.0. Giving feedback for 1.2 saying "dont undo 1.0" is like if someone on this forum was looking for constructive feedback on how to make a Fighter that's sneaky and someone said "the only way to do that is dont make a Fighter, make a Rogue." Its not helping with constructing on what has been put forward, just looking to reverse the choice altogether.
Let me be clear, theres no problem with you wanting OGL 1.0a to stay in effect and there is a place and voice for that opinion. There are already metric tons of threads with that idea being supported and repeated to hopefully get WotC attention. This thread, however, is aiming to try and help build up the proposed 1.2 into something worthwhile, not revert back to 1.0a
Isn't that a constructive suggestion?
They can make a new license if they want, but what I'm suggesting, actually demanding, is that they don't override 1.0a. It may be unrealistic at the point we're at, but it's not unreasonable. There's nothing they can do with 1.2 that appeals to me, if they remove 1.0a
But hey, my constructive suggestion: Do not include abusive clauses that can be used to steal the IP of those who publish under the OGL. That happens with point 3 of OGL 1.2 There they tell you that if they copy your content, you have to prove that they did it knowingly and that it is not "coincidence". You also agree that you can only bring them to trial under their conditions, and as a single person. And why the latter? Well, because Hasbro/WoTC is obviously going to have more financial muscle than you, and the only way you're going to face a lawsuit like that is probably with a class action lawsuit. Oh, and you also waive a jury trial. (these last two things are in 9e and 9g). By the way, if you win the trial, the only thing you could claim is money. In no way can you claim that they stop using your content. I don't know the laws of the USA. But is that clause legal? In any case, it is unfair. My constructive suggestion is to remove it.
Given the progress made thus far, having "no deauthorization of 1.0a" as a red line is not remotely unrealistic.
They can give on that point, and they can publish an updated license that is good enough people may actually want to use it instead.
There's no reason the community has to settle for less - I wish people would not push for giving up when we're making progress.
Other constructive advice for 1.2+ - if they want people to accept their anti-hate clause, there needs to be recourse and assurance it can't be abused, such as administration by a neutral third party. Otherwise, there's no reason to believe it can't be abused in the short or long term.
Let me be clear. When I am saying talking about the deauthorization of 1.0a is not constructive, I mean specifically within the context of this thread. Its plenty constructive to the OGL conversation at large, but not to this thread specifically which wants to try and make 1.2 the best it can be.
Thats why I want to dissuade people from talking about 1.0a here, because I do not want it to distract or derail what could otherwise be a productive thread towards providing feedback on the new OGL.
I will post my own ideas about 1.2's language once I have some more time to put my thoughts together
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The issue with an appeals process is that appeals are very costly, time-consuming, and can bind a disagreement up for several years. That's why Wizards forbade them in the first place. Whether they were right to do so or not is not my place to say, but we can't pretend a legal appeal is an easy three-step process.
Nevertheless. My current constructive suggestions:
-Section 6f overreaches and provides over-broad terminative powers to Wizards. A person should not lose their business because they said something pithy on Twitter. I would strike the "hateful conduct" line, and add a clause similar to Section 3a wherein provision for lawsuit is permitted but limited. I.e. a "fine, but make it quick" version that is minimally able to tie up legal resources in costly court battles. Optionally, Wizards could include a link to a Hateful Content Policy document similar to the VTT Policy document that provides a NON-EXHAUSTIVE(!!!) definition of what Wizards finds to be hateful and unacceptable in a Creator product supplement. Such a document is ABSOLUTELY REQUIRED to be expressly non-exhaustive, or the entire 6f clause becomes worthless. There is no way to fairly and impartially implement an exhaustive "this is hateful, everything else is not" list and attempts to do so are always misguided at best. Linking to a Hateful Content Policy allows the policy to be updated as needed without needing to change/update OGL 1.2.
-Section 3a allows suit only for money damages. It should be amended to allow suit for money damages and/or authorial credit. If someone can prove that Wizards Stole Their Content, they should receive due and fair credit for the content they created. Inability to sue for injunctive relief is fine, injunctive relief causes irreparable harm to business for what is almost certainly going to be meritless suits.
-Section 6e does not specify which laws are in effect. "You cannot violate the law in any way" is over-broad, as it mandates that one must comply with every law written by every government on Earth. It should be amended to state "You cannot violate the laws of your region that govern your business and Your Licensed Works", or similar rewrite to make it clear that you only have to obey the laws that actually apply to you.
That's what I can think of off the top of my head and a quick rescan of the document.
The pieces of feedback I will be offering when the open comment period goes live:
Paragraph 3(b) - Change this paragraph to read: “Any such claim will be brought only as a lawsuit for breach of contract and only for monetary damages and the limited specific performance of receiving author credit. You expressly agree that monetary damages and/or specific performance of receiving author credit are an adequate remedy for such a breach and you shall not seek or be entitled to injunctive relief or any specific performance Beyond receipt of author credit.”
That preserves what Wizards wants to avoid - someone using the mess of an IP system to hold products hostage, while also ensuring that, if it is proven Wizards stole someone’s content, that person receives credit for the content.
Paragraph 6(f) - Remove “and you covenant that you will not contest any such action via any suit or other legal action.”
I do not think this language is enforceable - I can’t speak for Washington’s law, but I know my own state heavily disfavours contractual terms that take away your right to defend yourself in the event of a material breach (such as alleged overreach by Wizards in determining something is offensive). Again, can’t speak for Washington, but I also know plenty of judges in my area who, seeing part of a term is unenforceable, might say all of Paragraph 6(f) is unenforceable - leading to the distinct possibility that Wizards could lose the right to enforce the anti-bigotry terms all together. Not a fan of legal terms that might backfire horrifically.
Paragraph 9(d) - Change the severability language. Here is language I use in contracts (updated slightly to reflect their formatting and how they self-reference their document) that should be sufficient:
If any of the provisions of this license is held to be invalid or unenforceable, all other provisions hereof shall, nonetheless, continue in full force and effect, unless the failure of the invalid or unenforceable provision shall be so substantial as to result in a failure of consideration for the license as a whole.
That language means they cannot use 9(d) to back door out of the license, except in the very, very limited case where a judge says “this entire license is so poorly done that all of it should be thrown out.” This protects users from Wizards invalidating the entire license over a single term, and puts the power to throw out the entire document only in the hands of a judge.
The issue with an appeals process is that appeals are very costly, time-consuming, and can bind a disagreement up for several years. That's why Wizards forbade them in the first place. Whether they were right to do so or not is not my place to say, but we can't pretend a legal appeal is an easy three-step process.
Nevertheless. My current constructive suggestions:
-Section 6f overreaches and provides over-broad terminative powers to Wizards. A person should not lose their business because they said something pithy on Twitter. I would strike the "hateful conduct" line, and add a clause similar to Section 3a wherein provision for lawsuit is permitted but limited. I.e. a "fine, but make it quick" version that is minimally able to tie up legal resources in costly court battles. Optionally, Wizards could include a link to a Hateful Content Policy document similar to the VTT Policy document that provides a NON-EXHAUSTIVE(!!!) definition of what Wizards finds to be hateful and unacceptable in a Creator product supplement. Such a document is ABSOLUTELY REQUIRED to be expressly non-exhaustive, or the entire 6f clause becomes worthless. There is no way to fairly and impartially implement an exhaustive "this is hateful, everything else is not" list and attempts to do so are always misguided at best. Linking to a Hateful Content Policy allows the policy to be updated as needed without needing to change/update OGL 1.2.
-Section 3a allows suit only for money damages. It should be amended to allow suit for money damages and/or authorial credit. If someone can prove that Wizards Stole Their Content, they should receive due and fair credit for the content they created. Inability to sue for injunctive relief is fine, injunctive relief causes irreparable harm to business for what is almost certainly going to be meritless suits.
-Section 6e does not specify which laws are in effect. "You cannot violate the law in any way" is over-broad, as it mandates that one must comply with every law written by every government on Earth. It should be amended to state "You cannot violate the laws of your region that govern your business and Your Licensed Works", or similar rewrite to make it clear that you only have to obey the laws that actually apply to you.
That's what I can think of off the top of my head and a quick rescan of the document.
I like these although I have to disagree with you a bit on the appeals process. The goal of this, on paper at least, is not just to get us fanpeople on board but to get 3PPs on board. Revoking any kind of appeals process whatsoever AND making definitions so broad in regards to what can be striken down should be a non starter for most 3PPs, even if (as you say) those definitions have to be broad by the nature of it all. At best you're asking 3PPs to take a risk (how great depends on your view I suppose) as written. Not good. Of course, if Wizards is more worried that somebody may post something like their own Hazodee kerfluffle under 1.2 than making 3PPs feel more safe that's on them.
Paragraph 6(f) - Remove “and you covenant that you will not contest any such action via any suit or other legal action.”
I do not think this language is enforceable - I can’t speak for Washington’s law, but I know my own state heavily disfavours contractual terms that take away your right to defend yourself in the event of a material breach (such as alleged overreach by Wizards in determining something is offensive). Again, can’t speak for Washington, but I also know plenty of judges in my area who, seeing part of a term is unenforceable, might say all of Paragraph 6(f) is unenforceable - leading to the distinct possibility that Wizards could lose the right to enforce the anti-bigotry terms all together. Not a fan of legal terms that might backfire horrifically.
If I understand this document correctly, if this part of 6(f) is found unenforceable (EDIT) in court (/EDIT) the severability clause as currently written could render the ENTIRE 1.2 inoperative (or whatever the legal term is)?
The issue with an appeals process is that appeals are very costly, time-consuming, and can bind a disagreement up for several years. That's why Wizards forbade them in the first place. Whether they were right to do so or not is not my place to say, but we can't pretend a legal appeal is an easy three-step process.
Nevertheless. My current constructive suggestions:
-Section 6f overreaches and provides over-broad terminative powers to Wizards. A person should not lose their business because they said something pithy on Twitter. I would strike the "hateful conduct" line, and add a clause similar to Section 3a wherein provision for lawsuit is permitted but limited. I.e. a "fine, but make it quick" version that is minimally able to tie up legal resources in costly court battles. Optionally, Wizards could include a link to a Hateful Content Policy document similar to the VTT Policy document that provides a NON-EXHAUSTIVE(!!!) definition of what Wizards finds to be hateful and unacceptable in a Creator product supplement. Such a document is ABSOLUTELY REQUIRED to be expressly non-exhaustive, or the entire 6f clause becomes worthless. There is no way to fairly and impartially implement an exhaustive "this is hateful, everything else is not" list and attempts to do so are always misguided at best. Linking to a Hateful Content Policy allows the policy to be updated as needed without needing to change/update OGL 1.2.
-Section 3a allows suit only for money damages. It should be amended to allow suit for money damages and/or authorial credit. If someone can prove that Wizards Stole Their Content, they should receive due and fair credit for the content they created. Inability to sue for injunctive relief is fine, injunctive relief causes irreparable harm to business for what is almost certainly going to be meritless suits.
-Section 6e does not specify which laws are in effect. "You cannot violate the law in any way" is over-broad, as it mandates that one must comply with every law written by every government on Earth. It should be amended to state "You cannot violate the laws of your region that govern your business and Your Licensed Works", or similar rewrite to make it clear that you only have to obey the laws that actually apply to you.
That's what I can think of off the top of my head and a quick rescan of the document.
I like these although I have to disagree with you a bit on the appeals process. The goal of this, on paper at least, is not just to get us fanpeople on board but to get 3PPs on board. Revoking any kind of appeals process whatsoever AND making definitions so broad in regards to what can be striken down should be a non starter for most 3PPs, even if (as you say) those definitions have to be broad by the nature of it all. At best you're asking 3PPs to take a risk (how great depends on your view I suppose) as written. Not good. Of course, if Wizards is more worried that somebody may post something like their own Hazodee kerfluffle under 1.2 than making 3PPs feel more safe that's on them.
I would think the largest 3PPs are in the same general headspace as WotC regarding what would be considered 'hateful, etc' so the issue would likely come from niche publishers with extremist bents...I doubt Paizo or the others would ever generate an issue with the clause to begin with. That said, my constructive suggestion would be a stated opportunity to amend the violating content in a review process, rather than removal of your use of the license as a first step. Basically a warning and opportunity to fix the issue prior to full action.
Edit: I would add that this doesn't remove WotC's authority to be the arbiter of their own IP (which is a right I don't have a problem with them having), but it is an opportunity for the creator to receive specific feedback on what is inappropriate and an opportunity to fix the issue. This should eliminate WotC ability to hide actions for motivations other than enforcing IP integrity behind this clause (since said creator would also be able to raise the alarm to the court of public opinion if the reasons didn't align with the stated use of the clause).
I want to clarify one thing, when I say that my suggestion is not to remove OGL1.0a, I mean that 1.2 does not invalidate 1.0a.
Perhaps that is what has not been understood, and probably the reason why the post has been deleted.
I am not saying that they should not make another license if they want. But let 1.0a continue to be valid. And that the creators chose which one they prefer to join.
Paragraph 6(f) - Remove “and you covenant that you will not contest any such action via any suit or other legal action.”
I do not think this language is enforceable - I can’t speak for Washington’s law, but I know my own state heavily disfavours contractual terms that take away your right to defend yourself in the event of a material breach (such as alleged overreach by Wizards in determining something is offensive). Again, can’t speak for Washington, but I also know plenty of judges in my area who, seeing part of a term is unenforceable, might say all of Paragraph 6(f) is unenforceable - leading to the distinct possibility that Wizards could lose the right to enforce the anti-bigotry terms all together. Not a fan of legal terms that might backfire horrifically.
If I understand this document correctly, if this part of 6(f) is found unenforceable (EDIT) in court (/EDIT) the severability clause as currently written could render the ENTIRE 1.2 inoperative (or whatever the legal term is)?
That is one way to read 6(f) and 9(d), yes - I do not think it was intentionally put in there to be a back door out of the license, as some are claiming, but I do think they’re not great in tandem with one another. Hence my commentary updating both provisions, making the anti-bigotry language less likely to be found unenforceable and the sever ability language more favourable to the third party producers.
I probably would not have a problem with the severability language including something along the lines of “If a provision of this agreement is found to be unenforceable, this license may be updated to include a similar term designed to fulfil the same purpose” as a compromise position (spitballed language; it could probably be cleaned up some). Most of the terms are pretty standard and are very unlikely to be found unenforceable, so such additional language would really just exist to allow Wizards to write different/better anti-racism language if a judge finds what they do produce unenforceable in its entirety.
Let me be clear. When I am saying talking about the deauthorization of 1.0a is not constructive, I mean specifically within the context of this thread. Its plenty constructive to the OGL conversation at large, but not to this thread specifically which wants to try and make 1.2 the best it can be.
Thats why I want to dissuade people from talking about 1.0a here, because I do not want it to distract or derail what could otherwise be a productive thread towards providing feedback on the new OGL.
I will post my own ideas about 1.2's language once I have some more time to put my thoughts together
Maybe but this thread, pretty typically, is presented falsely malign and negatively categorise people seeking what we see to be the most constructive of option.
Other, to whatever extent, constructive suggestions will, in various ways, typically recommend various limitations of the clauses of the proposed replacement OGL. On the table is a very constructive suggestion not to make any changes at all.
PLEASE STOP! I really don't understand the desire to twist things and decry legitimate suggestions even from the OP above:
... I see a lot of people who are determined to take a destructive route,...
That's a pretty vehement example of spin. The OGL is perhaps the most constructive thing that ever happened to the game - and yet people who dare speak about preserving it are now labled as taking "a destructive route". A previous thread labeled contributors as "rabid hyenas". It's toxic and it's spin in trying to shout down and badmouth legitimate options. PLEASE STOP!
By all means, discuss other options but please, treat all contributions with respect.
I want to clarify one thing, when I say that my suggestion is not to remove OGL1.0a, I mean that 1.2 does not invalidate 1.0a.
Perhaps that is what has not been understood, and probably the reason why the post has been deleted.
I am not saying that they should not make another license if they want. But let 1.0a continue to be valid. And that the creators chose which one they prefer to join.
This is likely a non-starter for them though, as one of their stated goals is to have the ability to monitor and control the use of hateful, etc...content made under the license. 1.0a cannot be successfully amended to grant them that ability due to its own wording, so to allow it to be valid is to give up that ability. There are likely very specific reasons for their desire to do this that stem from recent issues with bad actors trying to publish racist content with their IP (nuTSR).
Paragraph 6(f) - Remove “and you covenant that you will not contest any such action via any suit or other legal action.”
I do not think this language is enforceable - I can’t speak for Washington’s law, but I know my own state heavily disfavours contractual terms that take away your right to defend yourself in the event of a material breach (such as alleged overreach by Wizards in determining something is offensive). Again, can’t speak for Washington, but I also know plenty of judges in my area who, seeing part of a term is unenforceable, might say all of Paragraph 6(f) is unenforceable - leading to the distinct possibility that Wizards could lose the right to enforce the anti-bigotry terms all together. Not a fan of legal terms that might backfire horrifically.
If I understand this document correctly, if this part of 6(f) is found unenforceable (EDIT) in court (/EDIT) the severability clause as currently written could render the ENTIRE 1.2 inoperative (or whatever the legal term is)?
That is one way to read 6(f) and 9(d), yes - I do not think it was intentionally put in there to be a back door out of the license, as some are claiming, but I do think they’re not great in tandem with one another. Hence my commentary updating both provisions, making the anti-bigotry language less likely to be found unenforceable and the sever ability language more favourable to the third party producers.
I probably would not have a problem with the severability language including something along the lines of “If a provision of this agreement is found to be unenforceable, this license may be updated to include a similar term designed to fulfil the same purpose” as a compromise position (spitballed language; it could probably be cleaned up some). Most of the terms are pretty standard and are very unlikely to be found unenforceable, so such additional language would really just exist to allow Wizards to write different/better anti-racism language if a judge finds what they do produce unenforceable in its entirety.
Really interesting stuff. One more question if you don't mind (I understand this is not legal advice): if my company produces multiple products under the 1.2 but ONE of them is found in violation of 6(f) and the license is 'terminated' is it terminated for stuff I already produced under 1.2 and/or any stuff I will produce under 1.2 or just for the product I produced that was found in violation of 6(f)?
This thread is so that instead of making assumptions (good or bad), we can actually pick out the weak portions of the new OGL proposal and suggest rephrasing or additions to make it better. I see a lot of people who are determined to take a destructive route, but if we approach this from a constructive route, we can actually get most of what we want, right?
So I'll begin:
In regard to the Hateful content issue and Wizards being able to decide what is considered inappropriate, I get their concerns. They have a valid desire to make sure their product is not used to harm others, and they should have the right to act immediately upon those concerns.
My suggestion though, is that they add an unbiased appeals process. If a 3rd party is determining if the content is harmful to Wizards or others, then the action would be upheld. If the content is not, the action is reversed.
We also need to understand that Wizards can be sued for content that they have no control over, so they need to be able to protect themselves too.
So what provisions bother you and how would you fix them in a way that benefits both sides?
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Thats not constructive. One thing that has not changed for Wizards in this whole process is that they intend to stop using 1.0. Giving feedback for 1.2 saying "dont undo 1.0" is like if someone on this forum was looking for constructive feedback on how to make a Fighter that's sneaky and someone said "the only way to do that is dont make a Fighter, make a Rogue." Its not helping with constructing on what has been put forward, just looking to reverse the choice altogether.
Let me be clear, theres no problem with you wanting OGL 1.0a to stay in effect and there is a place and voice for that opinion. There are already metric tons of threads with that idea being supported and repeated to hopefully get WotC attention. This thread, however, is aiming to try and help build up the proposed 1.2 into something worthwhile, not revert back to 1.0a
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It's pretty clear at this point that Wizards plans on moving forward with this 1.2/1.X OGL whether we like it or not and we're just gonna have to bite that bullet. I know for a fact that when the survey goes up a lot of people are just gonna go "1.0 or bust". Regardless, we have an opportunity to make the OGL beneficial for everyone involved.
My first suggestion is a complete do-over of their VTT clause, especially the part about animations.
1) Make the OGL explicitly royalty free: As noted by My Lawyer Friend while it doesn't ask for royalties it doesn't explicitly forbid them either. It can't hurt to add this if that's their intent.
2) Removal of waiver of jury trials: I understand this is on shakey legal ground already so just get rid of it. I don't care if it's industry standard. Industry standard has already been shown to be sucky and not enforceable anyway.
3) Don't deauthorize 1.0: I know I know. But with the legal headaches and the vitriol going around and the lack of trust this has created with 3PP it's my constructive suggestion. They're already allowing you to use their trademark "&" with the 1.2 so that should be a great incentive for people to switch over. If it's not oh well. (I really don't want to get into this argument forever and a day but I'll leave it at that)
4) Make 6(f) FAR better: Okay the most controversial (after deauthorization). 1.2 gives far too much power to Wizards and no recourse except that they are nice enough to give you 30 days which is hardly enough time. Include a rider or guide or something with more clear definitions and add an appeals process and/or an arbitration clause (at the minimum) instead of just revoking all rights from the licensee. Ideally I would strike 6(f) altogether but they've locked themselves in on this point and it would be unrealistic to expect them to go back on it.
It's a valid and constructive reply and a heartfelt recommendation of a valid response. OGL:1.0 was the very definition of constructive. After the destructive days of "They Sue Regularly"/"T$R", the OGL created an incredibly constructive context in which many creators gave hugely to bring more momentum to the development of D&D. That's a rug that they now want to pull. A constructive suggestion is don't!
This thread is supposed to be about the new OGL and how to improve it, not whether or not the old OGL should remain in place. Any suggestion that isnt related to the new OGL is not constructive to this thread. You can push for OGL 1.0a to remain in effect AND make suggestions for a stronger OGL 1.2, but this thread is only concerned with the latter.
The only reason I am being so insistent about this is because this thread gives the opportunity to approach the new developments in a direction different from existing threads. I dont want this to be the 100th thread that gets bogged down in the "why not just keep 1.0a" type debate that has been repeated ad nauseum over the past few weeks
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Isn't that a constructive suggestion?
They can make a new license if they want, but what I'm suggesting, actually demanding, is that they don't override 1.0a. It may be unrealistic at the point we're at, but it's not unreasonable. There's nothing they can do with 1.2 that appeals to me, if they remove 1.0a
But hey, my constructive suggestion:
Do not include abusive clauses that can be used to steal the IP of those who publish under the OGL. That happens with point 3 of OGL 1.2 There they tell you that if they copy your content, you have to prove that they did it knowingly and that it is not "coincidence". You also agree that you can only bring them to trial under their conditions, and as a single person. And why the latter? Well, because Hasbro/WoTC is obviously going to have more financial muscle than you, and the only way you're going to face a lawsuit like that is probably with a class action lawsuit. Oh, and you also waive a jury trial. (these last two things are in 9e and 9g).
By the way, if you win the trial, the only thing you could claim is money. In no way can you claim that they stop using your content. I don't know the laws of the USA. But is that clause legal? In any case, it is unfair. My constructive suggestion is to remove it.
One more:
5) Make the severability clause more limited: While the clause that can invalidate the license due to a change of the laws governing contracts or (anything else that impacts it) the fact that this clause kills THE ENTIRE LICENSE rather than a single section is problematic. This invalidation of the entire license doesn't seem to be typical as far as I can tell. This isn't a strong one as its pretty technical but I don't see why it can be more limited. An attorney can probably have a better view than me.
Given the progress made thus far, having "no deauthorization of 1.0a" as a red line is not remotely unrealistic.
They can give on that point, and they can publish an updated license that is good enough people may actually want to use it instead.
There's no reason the community has to settle for less - I wish people would not push for giving up when we're making progress.
Other constructive advice for 1.2+ - if they want people to accept their anti-hate clause, there needs to be recourse and assurance it can't be abused, such as administration by a neutral third party. Otherwise, there's no reason to believe it can't be abused in the short or long term.
Let me be clear. When I am saying talking about the deauthorization of 1.0a is not constructive, I mean specifically within the context of this thread. Its plenty constructive to the OGL conversation at large, but not to this thread specifically which wants to try and make 1.2 the best it can be.
Thats why I want to dissuade people from talking about 1.0a here, because I do not want it to distract or derail what could otherwise be a productive thread towards providing feedback on the new OGL.
I will post my own ideas about 1.2's language once I have some more time to put my thoughts together
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The issue with an appeals process is that appeals are very costly, time-consuming, and can bind a disagreement up for several years. That's why Wizards forbade them in the first place. Whether they were right to do so or not is not my place to say, but we can't pretend a legal appeal is an easy three-step process.
Nevertheless. My current constructive suggestions:
-Section 6f overreaches and provides over-broad terminative powers to Wizards. A person should not lose their business because they said something pithy on Twitter. I would strike the "hateful conduct" line, and add a clause similar to Section 3a wherein provision for lawsuit is permitted but limited. I.e. a "fine, but make it quick" version that is minimally able to tie up legal resources in costly court battles. Optionally, Wizards could include a link to a Hateful Content Policy document similar to the VTT Policy document that provides a NON-EXHAUSTIVE(!!!) definition of what Wizards finds to be hateful and unacceptable in a Creator product supplement. Such a document is ABSOLUTELY REQUIRED to be expressly non-exhaustive, or the entire 6f clause becomes worthless. There is no way to fairly and impartially implement an exhaustive "this is hateful, everything else is not" list and attempts to do so are always misguided at best. Linking to a Hateful Content Policy allows the policy to be updated as needed without needing to change/update OGL 1.2.
-Section 3a allows suit only for money damages. It should be amended to allow suit for money damages and/or authorial credit. If someone can prove that Wizards Stole Their Content, they should receive due and fair credit for the content they created. Inability to sue for injunctive relief is fine, injunctive relief causes irreparable harm to business for what is almost certainly going to be meritless suits.
-Section 6e does not specify which laws are in effect. "You cannot violate the law in any way" is over-broad, as it mandates that one must comply with every law written by every government on Earth. It should be amended to state "You cannot violate the laws of your region that govern your business and Your Licensed Works", or similar rewrite to make it clear that you only have to obey the laws that actually apply to you.
That's what I can think of off the top of my head and a quick rescan of the document.
Please do not contact or message me.
The pieces of feedback I will be offering when the open comment period goes live:
Paragraph 3(b) - Change this paragraph to read: “Any such claim will be brought only as a lawsuit for breach of contract and only for monetary damages and the limited specific performance of receiving author credit. You expressly agree that monetary damages and/or specific performance of receiving author credit are an adequate remedy for such a breach and you shall not seek or be entitled to injunctive relief or any specific performance Beyond receipt of author credit.”
That preserves what Wizards wants to avoid - someone using the mess of an IP system to hold products hostage, while also ensuring that, if it is proven Wizards stole someone’s content, that person receives credit for the content.
Paragraph 6(f) - Remove “and you covenant that you will not contest any such action via any suit or other legal action.”
I do not think this language is enforceable - I can’t speak for Washington’s law, but I know my own state heavily disfavours contractual terms that take away your right to defend yourself in the event of a material breach (such as alleged overreach by Wizards in determining something is offensive). Again, can’t speak for Washington, but I also know plenty of judges in my area who, seeing part of a term is unenforceable, might say all of Paragraph 6(f) is unenforceable - leading to the distinct possibility that Wizards could lose the right to enforce the anti-bigotry terms all together. Not a fan of legal terms that might backfire horrifically.
Paragraph 9(d) - Change the severability language. Here is language I use in contracts (updated slightly to reflect their formatting and how they self-reference their document) that should be sufficient:
If any of the provisions of this license is held to be invalid or unenforceable, all other provisions hereof shall, nonetheless, continue in full force and effect, unless the failure of the invalid or unenforceable provision shall be so substantial as to result in a failure of consideration for the license as a whole.
That language means they cannot use 9(d) to back door out of the license, except in the very, very limited case where a judge says “this entire license is so poorly done that all of it should be thrown out.” This protects users from Wizards invalidating the entire license over a single term, and puts the power to throw out the entire document only in the hands of a judge.
I like these although I have to disagree with you a bit on the appeals process. The goal of this, on paper at least, is not just to get us fanpeople on board but to get 3PPs on board. Revoking any kind of appeals process whatsoever AND making definitions so broad in regards to what can be striken down should be a non starter for most 3PPs, even if (as you say) those definitions have to be broad by the nature of it all. At best you're asking 3PPs to take a risk (how great depends on your view I suppose) as written. Not good. Of course, if Wizards is more worried that somebody may post something like their own Hazodee kerfluffle under 1.2 than making 3PPs feel more safe that's on them.
If I understand this document correctly, if this part of 6(f) is found unenforceable (EDIT) in court (/EDIT) the severability clause as currently written could render the ENTIRE 1.2 inoperative (or whatever the legal term is)?
I would think the largest 3PPs are in the same general headspace as WotC regarding what would be considered 'hateful, etc' so the issue would likely come from niche publishers with extremist bents...I doubt Paizo or the others would ever generate an issue with the clause to begin with. That said, my constructive suggestion would be a stated opportunity to amend the violating content in a review process, rather than removal of your use of the license as a first step. Basically a warning and opportunity to fix the issue prior to full action.
Edit: I would add that this doesn't remove WotC's authority to be the arbiter of their own IP (which is a right I don't have a problem with them having), but it is an opportunity for the creator to receive specific feedback on what is inappropriate and an opportunity to fix the issue. This should eliminate WotC ability to hide actions for motivations other than enforcing IP integrity behind this clause (since said creator would also be able to raise the alarm to the court of public opinion if the reasons didn't align with the stated use of the clause).
I want to clarify one thing, when I say that my suggestion is not to remove OGL1.0a, I mean that 1.2 does not invalidate 1.0a.
Perhaps that is what has not been understood, and probably the reason why the post has been deleted.
I am not saying that they should not make another license if they want. But let 1.0a continue to be valid. And that the creators chose which one they prefer to join.
That is one way to read 6(f) and 9(d), yes - I do not think it was intentionally put in there to be a back door out of the license, as some are claiming, but I do think they’re not great in tandem with one another. Hence my commentary updating both provisions, making the anti-bigotry language less likely to be found unenforceable and the sever ability language more favourable to the third party producers.
I probably would not have a problem with the severability language including something along the lines of “If a provision of this agreement is found to be unenforceable, this license may be updated to include a similar term designed to fulfil the same purpose” as a compromise position (spitballed language; it could probably be cleaned up some). Most of the terms are pretty standard and are very unlikely to be found unenforceable, so such additional language would really just exist to allow Wizards to write different/better anti-racism language if a judge finds what they do produce unenforceable in its entirety.
Maybe but this thread, pretty typically, is presented falsely malign and negatively categorise people seeking what we see to be the most constructive of option.
Other, to whatever extent, constructive suggestions will, in various ways, typically recommend various limitations of the clauses of the proposed replacement OGL. On the table is a very constructive suggestion not to make any changes at all.
PLEASE STOP! I really don't understand the desire to twist things and decry legitimate suggestions even from the OP above:
That's a pretty vehement example of spin. The OGL is perhaps the most constructive thing that ever happened to the game - and yet people who dare speak about preserving it are now labled as taking "a destructive route". A previous thread labeled contributors as "rabid hyenas". It's toxic and it's spin in trying to shout down and badmouth legitimate options. PLEASE STOP!
By all means, discuss other options but please, treat all contributions with respect.
This is likely a non-starter for them though, as one of their stated goals is to have the ability to monitor and control the use of hateful, etc...content made under the license. 1.0a cannot be successfully amended to grant them that ability due to its own wording, so to allow it to be valid is to give up that ability. There are likely very specific reasons for their desire to do this that stem from recent issues with bad actors trying to publish racist content with their IP (nuTSR).
Really interesting stuff. One more question if you don't mind (I understand this is not legal advice): if my company produces multiple products under the 1.2 but ONE of them is found in violation of 6(f) and the license is 'terminated' is it terminated for stuff I already produced under 1.2 and/or any stuff I will produce under 1.2 or just for the product I produced that was found in violation of 6(f)?