Four things strike me immediately:1. As a technical matter, the license is modelled off Creative Commons licenses and is much better drafted and clearer than OGL 1.0a.
2. With respect to the de-authorization of OGL 1.0(a), the license itself is silent. However, there is a separate notice attached to OGL 1.2 which recites:
"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."
The placement outside the license can be seen as an admission by WOTC that, at best, it is not clear that they have the authority to de-authorize OGL 1.0(a). In any event, it is severed from the text of OGL 1.2 which means that an adopter of OGL 1.2 is not giving up any rights that they may have to continue to use OGL 1.0(a). It also means that, if litigated and WOTC loses on a claim that they can de-authorize, it would not cause the failure of the OGL 1.2 license.
However, the statement regarding de-authorization is regrettably vague. Consider these three questions:
(a) Publisher wants to re-print in 2024 a book first published in 2020 which incorporated SRD content under OGL 1.0(a)
(b) Publisher wants to re-print with updates in 2024 a book first published in 2020 which incorporated SRD content under OGL 1.0(a);
(c) New publisher wants in 2024 to create and print a book which incorporates materials from a book first published in 2020 which incorporated SRD content under OGL 1.0(a).
These two statements appear in the draft notice: [x] "you may not use [OGL 1.0(a) to publish SRD content after [the effective date]; and [y] "Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content."
Statement [x] seems to imply that all 3 scenarios are forbidden, while statement [y] seems to imply that all 3 scenarios are OK. (In particular, all 3 scenarios are OK under OGL 1.0(a) and statement [y] says that content remains licensed under OGL 1.0(a).) However, if either of these extreme positions were the result, it would be absurd. Either the attempted de-authorization has no effect (i.e. all 3 scenarios remain OK) or WOTC's reassurances are misleading, at best.
3. Section 7(b)(i) allows WOTC to terminate OGL 1.2 with a licensee without any notice or opportunity to cure or notice if the licensee challenges WOTC's ownership of intellectual property. This is better than requiring users agree to not bring an action challenging WOTC intellectual property (as in OGL 2). But users of OGL 1.2 that want to challenge WOTC's intellectual property are taking a risk that they will no longer be able to use WOTC material licensed under OGL 1.2.
4. Section 7(b)(i) allows WOTC to terminate OGL 1.2 with a licensee without any notice or opportunity to cure or notice if the licensee's works include material that is "harmful, discriminatory, illegal, obscene, or harassing," or the licensee "engage
in conduct that is harmful, discriminatory, illegal, obscene, or harassing." WOTC has the "sole right to decide what conduct or content is hateful," and the licensee agrees not to challenge any determination.
Because WOTC determines what is hateful in a manner that cannot be challenged. This effectively makes the license revocable.
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The law, including law relating to contracts and copyright is almost infinitely complex and nuanced. There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
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