These two words have dominated the discussion of WotC’s attempts to eliminate #OGL 1.0a and replace it with something far more draconian.

Many people, including some lawyers, have argued that if a license doesn’t specifically state that it is irrevocable, it can be revoked at will.

But as far as I can tell, from what I’ve read and heard from lawyers and people who have spoken to lawyers in the open source community where they deal with this kind of thing as a matter of routine that simply isn’t true.

Take the MIT License, which has been used since the late 80s and is one of the most popular free software licenses in the world:

Copyright © (year) (copyright holders)

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

This license is widely considered to be valid, perpetual and non-revocable. Now, reading through it carefully, what two words do you not see?

Contracts are intended to be binding on both parties. That’s what a contract is – a binding agreement with particular terms. If you sign a contract that says “I will do X” you can’t simply get out of it by saying “I promised to do X, but I didn’t specifically promise not to not do X!”

Yet this is the consequence of assuming at-will revocation as the default – in order to really promise something, you have to not only make a promise, but make a separate promise to not renege on that promise.

There are two elements of the OGL that serve to make it irrevocable: One, the term “perpetual”. From what I’ve read, courts will generally tend toward the interpretation that when you specify a term, and don’t specify a termination clause, both parties meant and understood for the contract to last for that term.

Two, consideration. If you paid someone for a license they obviously can’t just cancel it at will unless they specify that they can in the contract – in effect saying “give us some money, and maybe we won’t just keep it in return for nothing.”

The OGL contains consideration, but it isn’t money – the consideration is “agreeing to use this License” – that is, publishing your work as Open Game Content under the OGL.

Some have claimed that there is no consideration in the OGL one one side or the other, but this is false. The license to the SRD and other OGC is valid consideration because the OGC contains copyrightable material, as well as uncopyrightable procedures and rules.

On the other side, the agreement to publish under the license has value too. Jacobsen v. Katzer in 2008 found that open source licenses do have consideration (emphasis mine):

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate.

Is it perhaps a good idea to specify both terms in future contracts? Absolutely, for the avoidance of doubt and stupid “no backsies” playground style arguments. Indeed, there may even be some uncertainty in certain jurisdictions as to which way the courts might rule.

But is it strictly necessary?

The long experience of the open source community – which seems to be our best source of evidence here – suggests no.

Of course I am not a lawyer, am not giving legal advice here, and I welcome clarification and corrections from actual lawyers if they care to weigh in.

But I have noticed several of the actual lawyers who have been weighing in on this issue don’t appear to have done their research. This is perhaps unsurprising. If anti-vaxxers can find doctors willing to claim COVID isn’t real, we must bear in mind that people with idiosyncratic interpretations of contract law are going to be able to find lawyers to swear to those, too.

And the danger here in focusing overly on these two words is that we end up getting hoodwinked with such things as “perpetual, irrevocable” licenses which have clear and draconian termination clauses, or can be updated to change their terms (including the term that makes them irrevocable) at will.

Because the law isn’t a game of Simon Says. The text of the contract in its entirety matters a lot more than whether you said the magic word.

In response to the community revolt over changes to the #OGL WotC have released an updated OGL1.2 draft. There are various changes to the terms of the proposed 1.1 but I wish to focus on those that affect the existing body of Open Game Content developed over 20 years.

The OGL1.0 and 1.0a create a contract between “the contributors”, meaning anyone who has contributed to a bucket full of shared resources called “the Open Game Content”, and the publisher making a derivative work using material from the bucket.

It allows anyone to put any part of their work into the bucket, and take whatever they want to use out of the bucket, as long as they otherwise abide by the terms of the license.

With 1.1, WotC tried to steal the bucket. They claimed the right to “de-authorize” earlier versions of the contract – a term as meaningful as “de-publish” or “de-sign” – which effectively meant they could dictate the license terms for all OGC content, regardless of who originally contributed it.

Edit: It also contained conflicting definitions of the content being shared.

Licensed Content (what used to be called “Open Game Content”)

i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition.

So it both says that 'Licensed Content' includes the content previously defined as OGC, and that it doesn't.

1.2 removes this ambiguity. It is not an open license, creating a commons to which anyone can contribute. It is purely a third party publishing license for the SRD5.1.

And they still claim it replaces the “de-authorized” 1.0a. So where 1.1 left you to use OGC except under the draconian terms of 1.1, 1.2 leaves you unable to re-use this work at all. There is simply, by their claim, no “authorized” OGL contract capable of licensing it.

Instead of stealing the bucket, they are now simply kicking it over so nobody else can have it.

They also claim that work published previously under 1.0a will still be licensed, but this isn’t in the contract. Instead, they put new terms in a legally dubious “Notice of Deauthorization”:

NOTICE OF DEAUTHORIZATION OF OGL 1.0a. The Open Game License 1.0a is no longer an authorized license. This means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date). It does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content.

Saying they have “de-authorized” the contract is, as I have said, like saying they have “de-signed” an agreement, so it seems very unlikely they actually have the legal power to do this; but let us accept for the sake of argument that they do.

1.0a is either an authorized agreement or it is not. If it is not, then by its own wording it cannot be used for publication. Here they say that 1.0a is no longer authorized. A “Notice of Deauthorization” is not a legal contract. It cannot apply new terms to the contract it has just invalidated.

So when they say

It does not mean that any content previously published under that version needs to update to this license.

that is not a legally binding contract clause: It is just ‘a thing they said’, like when they said

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.

and we all know how that turned out.

So the effect of 1.2 along with “de-authorization” of 1.0a, is to make 1.0a content unlicensed and unpublishable, with a non-binding claim that it actually is licensed and publishable, but only for old content.

Even if this is honored, the library of freely usable material represented by the OGC, created by hundreds of contributors over 23 years, will be locked away and unlicensed for use in any further works.

Some of those contributors will re-release their work under Creative Commons or the upcoming ORC license, but for some – who are no longer with us, busy with other things, or whose work relies on WotC material such as the D20 SRD – that work will not be recoverable.

If WotC are allowed to burn the OGC library it will be salvaged, and placed on a firmer footing, but it will never be recovered in its entirety.

And if there’s one thing D&D fans don’t like, it’s book-burners.