I've seen a ton of discussion on this, and the short of it is that the leaked version of 1.1 (assuming it is real and final) will almost certainly lose in court on account of failing to consider multiple aspects of contract law. Now, I am not a lawyer, but this is based on what I have seen being said by lawyers. Any one of the following arguments could be used in court, most likely by a class action lawsuit, as reason to invalidate the contract in part of in full:
1. According to multiple former Wizards employees who helped create ver. 1.0 and 1.0a, "perpetual" DOES mean "irrevocable", despite some claims made by lawyers who have weighed in and said otherwise. Notably, many of those lawyers I've seen claim that there is a distinction are not specialists in contract law or licensing, but rather copyright lawyers or in one case on ENWorld, a lawyer who advises
legislators. In said thread, something like three other lawyers weighed in to say that contracts don't work at all the same way as legislation, although each had their own opinions on the matter. None of them seemed to think WotC would win their case, for different reasons.
2. Even if those employees statements are not taken seriously by the courts, Wizards themselves had a Q&A section on their website for
decades that said, in fact, if they make a change to the OGL you are always free to use a previous version, and indeed there are still works licensed under version 1.0 (notably, 1.0a was made in response to the publication of The Book of Erotic Fantasy, which ended up being published under version 1.0 anyway). Thus, Wizards themselves can be proven to be arguing their interpretation in bad faith because they are changing their stance after literally two decades of saying otherwise. Perpetual DOES mean Irrevocable because Wizards themselves said as much for over two decades.
2a. Related to the above (meaning its technically a different argument from a legal perspective, but its damn similar), to revoke the OGL now when they had that statement on their website for 23
years would qualify as Promissory Estoppel. If you play Magic, you might recognize this as the same legal threat that keeps the Reserved List in effect. Basically, it means they promised not to revoke it for literally decades, during which time their competitors businesses gained value primarily on the basis of WotC's promise to keep the license going perpetually. Going back on their word directly harms their businesses by forcing them to take products off the shelves and off online retailers, which means they can enforce the
promise that OGL 1.0a will not be revoked even if "perpetual" is taken to be different from "irrevocable". Notable, like many of these other arguments, this will also come into force if WotC tries to play the technicality that they aren't
revoking the OGL, merely updating it and "de-authorizing" version 1.0 and 1.0a. Given all the major changes in the license, that's still Promissory Estoppel, because the individual clauses are promises not to interfere with their business practices based on those terms and conditions.
3. Perpetual means Irrevocable because that's what it usually means in the software world, and the OGL was based on open source software licenses. Now, today most of those licenses have added the word "irrevocable" to the language just to prevent any confusion on the matter or legal fuckery about how terms are to be interpreted (because the writers of those licenses eventually realized that lawyers are Usually Lawful Evil), but the court would be advised to take the intended understanding from the time the OGL was written, for reasons already stated. This also means that parties far outside the world of tabletop gaming have a stake in the matter, as any precedent set by this case would impact software licenses from that era as well.
4. Wizard's revoking the license 23 years later after mass adoption across an entire industry is clearly in violation of fair business practice laws, possibly even an anti-trust violation (because of 1.1's
revenue theft fees for users that make more than a certain amount of money, not to mention their fuckery with Kickstarter and the world of Virtual Tabletops). They essentially tricked the market into mass adoption of something they now argue they can take back, that is unfair business practice and attempting to profit illegally from a monopoly on the license. Even if the 3pp companies don't try to take it up with the FTC because we know how rarely that works, the argument for fair business practice would be strong because much of the language in ver 1.1 takes rights that were granted to the licensee and tries to invert them to be rights reserved for WotC themselves; particularly disturbing are the addition of rights for WotC to basically republish your copyrighted material at will
even if they revoke 1.1, which is explicitly revocable at any time. I can't see how that is even allowable under copyright law, given that 1.1 is being shoved down everyone's throats, and courts tend to interpret unsigned, unilateral licenses and contracts like this in a favorable manner to the consumer or licensee in order to prevent abuses of this kind. Speaking of which...
5. You can't force someone to accept a license, especially a unilateral one like the OGL. Yes, even if they already have another license from you that can be modified at any time. The 3pp market already accepted ver 1.0a for their products, and the new license cannot be enforced retroactively. Remember how I said that some products are still published under ver 1.0? That's because WotC's lawyers back then knew better than to contradict basic principles of licensing. This is why their Q&A said you can always choose an older version of the license even if they publish a revision. This same argument goes for "de-authorization", because that's just revocation of the license in different words, and courts don't like to play word games with lawyers.
6. And I should expand on that point. There is no clause in the OGL ver 1.0a that says they can de-authorize the license. And what a novel idea that is! Have you ever heard a lawyer ever seriously propose that you can just unilaterally "de-authorize" a previously offered perpetual license? No, because its nonsense. According to the terms of OGL 1.0a they can make modifications, but while authorization is mentioned, its mentioned in the context of making available
new versions of the license, aka. only an authorized agent may modify the license, and if they do it explicitly mentions you can still use previous authorized versions of the license. This doesn't read as saying WotC can revoke authorization, and no one in history has ever tried arguing that a new license can revoke a previous license
without the licensee first accepting the terms of the new license; hence, once authorized, always authorized until
you, the licensee, agree to terminate your previous contracts with them. In order to revoke it unilaterally, they have to win the argument that a perpetual license is revocable unless specifically stated otherwise in the license. But it gets worse for WotC...
7. The OGL
is revocable, actually. That is, it technically has a specific termination clause. "Section 13 Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License." Since Wizards didn't write a de-authorization clause into the previous terms, there is no breach of contract that they can use to force people to terminate the license, and whenever a termination clause is mentioned in a license or contract, courts tend to interpret that as the ONLY way to revoke or terminate that license. You made specific agreements with specific terms, and are required to meet those terms with your licensees. Moreover, section 9, the section that mentions authorization, specifically says "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." The bolding is mine. The plain reading of this is to say that the licensee is allowed to use ANY OGC published under ANY version of the license regardless of what version of the license that OGC was published under. This seems to explicitly preclude modifying this section of the license to prevent people from republishing the old SRDs, or even from taking material published under ver 1.1 without having to accept the
terms of ver 1.1. If its an authorized version of the OGL, ver 1.0a authorizes you to use that material under 1.0a, and Hasbro can go fuck themselves. If they wanted to make another version of the GSL, they should have called it the GSL ver 2. Then this term of their agreement wouldn't allow people to take
their stuff and use it.
8. You will also notice that the termination clause specifically says that sub-licenses shall survive termination of the OGL 1.0a. Meaning that even if they had power to de-authorize ver 1.0a, some users can argue that they are
totally unaffected under this clause, and WotC cannot enforce new terms on them as a result. Once a contract is struck, you have to follow your agreements.
(However, I am not a lawyer let alone a contract lawyer, so I will not pretend to know which entities qualify as using a sub-license. Its just worth knowing that WotC explicitly cannot yank the OGL 1.0a from
everyone, authorization or no authorization.)
9. And you have to follow your agreements, because otherwise contracts are meaningless. Unilateral revision of a contract is disallowed by basic contract law. Once you have signed into contract that sub-licenses will survive termination of the contract, they
will survive termination of the contract. Once you promise in the contract itself that the license is perpetual, that material can forever be published under that license. The most generous interpretation for WotC's "de-authorization" argument is that they can forbid new material to be published under version 1.0a, but previous material shall not be effected under the terms of the previously authorized contract. If it was authorized at the time of publication, retroactively taking that license away or using Product Identity without authorization is a breach of contract on WotC's part. Any new material published by those publishers doesn't have to be published under the OGL 1.1, either, because again, you cannot force a license on anyone. They can make their own license for their own users, and Hasbro cannot do a damn thing about it, just as they cannot tell them not to publish under, say, the Cypher System, which has its own license separate from the OGL.
10. The OGL in its entirety may be licensing things that WotC has no right to license in the first place. This is the argument
currently being made by the publishers of Delta Green, Arc Dream Publishing, who have already taken the step of removing the OGL
1.0a from all of their products in spite of section 10 of the OGL clearly stating that in order to publish OGC you must attach the OGL to the content somewhere. Arc Dream Publishing is essentially saying fuck that and fuck you, you can't revoke the license if the license is unenforceable anyway. Section 14 says that if some part of the contract is held unenforceable, it will be amended until it can be enforced, after all. And it doesn't matter, because contracts cannot override law. According to Arc Dream Publishing, basically every piece of OGC that they actually use in Delta Green are game mechanics that cannot be copyrighted or trademarked in the first place, because US copyright law only protects art, stories, and expression, not ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, and all of that is what makes a game a game. Their specific way of describing the game mechanics of Delta Green are their own trademarks and copyrights, and if WotC wanted to protect concepts like hit points, character classes, levels, ability scores, experience points, and saving throws, they can't do it through copyright, and they can't do it through trademark anymore because the whole damn video game industry uses those terms and concepts, making every last one of them genericized. My take on this argument is, if WotC had wanted to protect these ideas they should have instead filed for a
patent. And the opportunity to do that expired nearly 50 years ago when Gygax and Arneson went ahead and published their games without doing so.
Now that last argument is technically untested in courts, as some people have pointed out. It has been tested for simpler games and their mechanics, like rolling dice, moving pieces around a board or a screen, and so on, but not for RPG mechanics. The problem they point out is that mechanics and fluff are far more integrated in RPG's than other genres. Thus while the resolution mechanic of throwing a d20 would likely be interpreted as non-copyrightable, the stats for an elf might be given
some kind of consideration by a copyright judge. However, the concept of an elf certainly isn't trademarked because elves are used all around the fantasy genre by numerous companies and publishers, so the genericized trademark argument would certainly hold up. Its a complicated argument to make, probably made easier for Delta Green because its not a High Fantasy game and thus doesn't contain nearly as many items in it that WotC could try and claim ownership of in the first place.
However, that's perhaps besides the point. Arc Dream Studios is throwing down the gauntlet. They are challenging WotC by saying "if you don't sue us now for breaching the terms of OGL 1.0a, what right do you have to claim that authorization has anything to do with it? Everyone else can follow in our suit, and if you don't take us to court now, then they will win any legal battle by citing our position." They're basically saying that other publishers, particularly those who have published entire
systems separate from the d20 system under the OGL, can back out of any version of the OGL at will because Wizards cannot enforce the very first clause of the contract, which is the ONLY clause that gives it any power whatsoever. The OGL 1.1 serves no useful purpose to any other publisher except WotC, and therefor no one has to abide by it either. WotC can either throw away all their cash trying to enforce an unenforceable contract on the entire industry starting with Arc Dream Studios, or they can cede that copyright never protected the license in the first place before a court of law; or the court of public opinion and market forces can overwhelm their ability to keep up with knockoff products made by everyone and their grandpa. Its widely believed that TSR's "They Sue Regularly" policy helped drive them to financial ruin in the long run, and while Hasbro is a bigger fish in the pond than TSR was, there are even bigger fish still out there that they may piss off with the
GSL 2.0 OGL 1.1.
For instance, its widely believed that they are trying to do this in order to attack two particular entities: Piazo, because they're still bitter about Pathfinder crushing 4e like a bug, and Matt Mercer for making shitloads of money off their game with Critical Role. Obviously Piazo is run by former WotC executives who were there when the OGL was first written and who know more than most how it was supposed to work, but lets talk Matt Mercer for a moment. Matt Mercer has published setting material under two different companies: WotC themselves with Explorer's Guide To Wildmount, and another Critical Role based book through Green Ronin. So he has a stake in the OGL, and a good claim that he has in fact given back to the company that made him so successful. That they are just being greedy bastards trying to steal from him and his business partners.
One of whom is Amazon. WotC's whole "we can publish any of your material we want through the OGL 1.1 even if we revoke OGL 1.1" is almost certainly going to get the attention of Amazon if they attempt to publish copyrighted material from Vox Machinima or even imply they could try to do so. Imagine WotC products being pulled from their website. Ooops. You got greedy. Another stakeholder they may unwittingly piss off? The Tolkien Estate, who currently publishes a Lord of the Rings RPG under the 5e rules set using the OGL. They also probably remember that time when E.G.G. ripped them off by putting Hobbits, Ents, and the Balrog in his game on his own misunderstanding of licensing rules. To this day I have been waiting for them to notice that "Halfling" is actually just another term for Hobbit found within the text of LotR. But anyway. There is at least one more company they might piss off if they get too greedy. Disney. Back in the day, Knights of the Old Republic was released, and under the hood it used the D20 system. It has the OGL ver 1.0a in its code. Furthermore, WotC used to make a D20 Star Wars RPG under license from Lucasfilm. WotC had better be careful how they handle the Mouse, because Star Wars is obviously big money to them, and they are an even bigger fish than Hasbro. The idea that Hasbro can bully all of their competitors by throwing money at SLAPP suits might seem like the strategy for shoving a clearly illegal license down everyone's throats, but that only follows until someone bigger than them decides to start funding the lawsuits in order to protect their IPs or to prevent a seriously harmful precedent in licensing law to be set that hurts businesses far beyond the gaming sphere.
Now they might just try to go after the little guys by abusing their agreements with Kickstarter. However, that will also only last until someone brings an Unfair Competition lawsuit against Kickstarter over Hasbro's shenanigains. Kickstarter isn't the only game in town either, and the little guys have the backing of the entire industry sans Hasbro themselves.
Hasbro has seriously overextended their authority and power on this one. This getting leaked might even prove to secretly be the best thing that could have happened to them, since it might end here and now with the lawyers who wrote it getting sacked, and a less egregiously illegal OGL 1.1 getting published in its stead that, while bullshit like the GSL, at least doesn't try provoking lawsuits by attempting to breach the contractual obligations of 1.0a by "de-authorizing" it. And if they do try to go forward with it? Well, Hickman and Weiss managed to get them to back down from whatever behind the scenes shit they were actually pulling, and that was only a small fraction of the fanbase decrying them as the villains. This is the entire industry they are trying to shake down.
Or as Sorchus likes to put it, "fuck around and find out".
