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As you all know, someone got a hold of a snippet of the new OGL 1.1 draft. A few people (publicly and privately) have asked me to weigh in based on my Tome of WotC Criticism. Sorry, but I’m not going to make the same mistake many people did jumping to conclusions about the OGL 1.1, so I’m certainly not going to comment on its text that I haven’t read. I’m also not relying on Gizmodo’s interpretation due to all of humanity’s experience with news media. I will remind you all that the current OGL isn’t a real license. No one has signed it, it’s terms for otherwise accepting it are laughable, and it doesn’t actually license you anything.
Beating a Dead Horse
WotC owns its expression of the game mechanics, but despite their implications, they never license that to you. The OGL (even assuming it’s real) uses terminology appearing in both the Patent Act and Copyright Act, saying “this stuff is what we’re licensing.” Those things are stated to be patentable subject matter in the Patent Act and are expressly excluded from copyrightable subject matter in the Copyright Act. And just to be on the safe side, the OGL says (in case it’s not already obvious, paraphrasing):
If any part of what we’re licensing falls under copyright or trademark [you know, such as the specific expression of game rules!], then we take that out of Open Gaming Content, stick it in Product Identity, and don’t license it to you.
No matter how seriously you take the OGL as a license, there’s simply no way to interpret, “processes, methods, routines, and procedures” as including anything copyrightable, which means nothing copyrightable is being licensed. So, despite the SRD containing WotC’s expression of game rules, and despite WotC’s claim to be allowing you to use that material, WotC is free to pull the rug out at any time and say, “You used out expression!” They never actually license it to you because the SRD is not in any way incorporated into the OGL.
Back on Point
It’s a bit hard to answer your questions or respond to your concerns when they’re all based on so weak a foundation, but here’s something on point. There’s a huge debate going around as to whether the OGL can be revoked. For those that say it can, you’re wrong because there’s nothing to revoke. It isn’t real. For those that say it can’t, you’re referencing language from the FAQ and OGL itself that suggests that. Why do you think that language makes it so clearly irrevocable? The FAQ itself states that “people will just ignore [a revocation] anyway.” How is it that a real license can simply be ignored? Because it’s not a real license. The answer to both groups is the same. You’re both right because you’re both wrong.
While the originally stated intentions were noble, this is, at least for at least the past decade or so, a big sham, and it’ll be very interesting to see whether the OGL 1.1 addresses these fatal shortcomings. Even worse for WotC, here’s an attorney taking the OGL seriously and threatening WotC with a lawsuit if they don’t clarify their position on revocation. To defend against any such lawsuit, or even to respond to the letter, may require WotC to take my OGL post and just read it. They’ll have to admit the OGL is a sham. Funny.
For now, though, I’m in the same holding pattern as you. Until we see the text, we don’t know. If, however, the OGL 1.1 corrects its errors as I’ve identified them, my arrogance level will rise so high that, well, I’d probably qualify for employment with WotC legal.
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