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Open Game License Version 1.2 Drafthow to say “irrevocable” like you mean it when you just revoked everybody’s licenses

This post is part of a series, First Reads.

Facing backlash for revoking its original Open Game License, Wizards of the Coast, publisher of Dungeons and Dragons, released a new draft version 1.2 of its Open Gaming License. Here are my thoughts on first read.

Section 2 (License)

In consideration for your compliance with this license, you may copy, use, modify and distribute Our Licensed Content around the world as part of Your Licensed Works.

On the receiving end of this license, I’d like full legal clarity that, in the language of the Copyright Act, “preparing derivative works” is fully covered, so long as I stay within the other rules of the terms.

“Modifying” existing copyrighted work often means “preparing a derivative work” in the legal sense. But not all derivative works are modifications. The Copyright Act defines derivative works more broadly as new work “based upon” preexisting work.

Full Definition from the Copyright Act > A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

Picking up from the OGL draft:

This license is perpetual (meaning that it has no set end date), non-exclusive (meaning that we may offer others a license to Our Licensed Content or Our Unlicensed Content under any conditions we choose), and irrevocable (meaning that content licensed under this license can never be withdrawn from the license).

US lawyers commonly list a bunch of keywords like “perpetual”, “non-exclusive”, and “irrevocable” right in a row in licenses-grant language. This is bad to read, but normal.

They key word in context here is clearly “irrevocable”.

I appreciate that they’ve explained the terms parenthetically. I think their plainer-terms explanations track true. I do wonder why we need both understandable explanations and jargon. But at least it’s not just jargon.

It also cannot be modified except for the attribution provisions of Section 5 and Section 9(a) regarding notices.

They want to reserve the right to change attribution requirements and how they can send and receive legal notices, like notices you’re in breach. That makes sense, considering how media and means of play have changed and keep changing, and the fact that addresses and popular messaging systems change. But they’re also evidently aware giving themselves free hand for changes could seem like leaving a loophole through the whole no-take-backs, “irrevocable” concept. Reassuring.

I’d like to see some limitations on how they can modify sections 5 and 9(a). For example, language saying that changes to section 5 can only address attribution for Licensed Works, and can’t impose any impractical or expensive new requirements.

Section 5(f) (No Hateful Content or Conduct)

You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing.

This isn’t just about your work. It’s also about your conduct. What you do at conferences. What you do online. What you do out in business or community.

I could read this as allowing Wizards to send notice of breach not just if they think your game content is “harmful”, but if they think something you said on Twitter was “harmful”. And I could foresee situations where whether and how it’s possible to “cure” a breach in published content or past conduct proves open, contestable questions. Retraction and request for people to download a new version? Public apology on the same social network as the offense?

If you can’t “cure” within 30 days, they can terminate your license. See 7(b)(ii).

We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.

Reading just the sentence before, “harmful” seemed like the word so broad it might swallow all the others. But the effect of this additional sentence is that “hateful” doesn’t mean hateful at all. It means whatever Wizards say it means—a gaping, vacuous void to fill with its own, explicitly absolute, discretion. If they want to shut you down and can’t find a more explicit term you’ve broken, they will always have this.

It’s possible that a court, dealing with a sympathetic plaintiff, might stretch the usual rules of contract interpretation to interpose some judicial check on whether Wizard actually saw “hateful”, or is just saying so to for legal effect. But I wouldn’t bet on it. The first rule is look at the language. This language is pretty explicit.

So the accountability on offer here hinges on public opinion. I don’t see anything requiring Wizards to adopt, much publish or maintain, an internal definition of “hateful” or a policy for identifying what is or is not. I don’t see any requirement to apply such a thing consistently across creators, or across the OGL and other terms with similar language, like their fan-content policy. But if word they abused their “hateful” power on an undeserving creator went public, they might end up with worse backlash than they’re feeling now.

Seeing these terms makes me think “total discretion” to terminate was on their list of functional requirements, likely for the sake of brand protection. If they won’t bend on it, possible mitigations would be procedural rather than substantive. Perhaps leave “hateful” to stand with its everyday meaning in the list of other kinds of bad, then add a new 6(g) after that rule that gives Wizards the power to claim breach explicitly for negative reflection on Wizards’ brands or reputation. Perhaps with a longer cure period, a requirement to press-release the breach notice, or both.

Section 7(a) (Modification)

We may only modify the provisions of this license identifying the attribution required under Section 5 and the notice provision of Section 9(a). We may not modify any other provision.

I could read this to restrict the substance of changes to the attribution section. But I’d still like reassurance new requirements won’t be onerous or impractical. Otherwise it’s a blank check.

Your thoughts and feedback are always welcome by e-mail.

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