Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[tomBitonti]

Why would I presume that. You are asking me to rewrite the OGL in my head without telling me how you want it re-written.

I think by "licenses which are created by copying the terms of the OGL" you mean "contractual licences the terms of which are as set out in the text of the OGL".

Those licences might be (head) licences, if issued by the owner of the licensed IP. Or they might be sub-licences, if issued by a licensee of the IP owner. The network of contractual licences that the OGL is intended to establish, creating an "ecology" of OGC, contains both these things.

The presumption is necessary to ask the question that follows. I’m asking to learn what is the character of the licenses which are formed by copying the terms of the head license. Do these conform to the definition of sub-licenses? Does calling them sub-licenses actually make them sub-licenses? According to section 4, explicit in the text, the Contributors grant the copy licenses.

TomB

 

[pemerton]

In the time between the Glorious Revolution 1688/89, and the rise of the Statute of Anne 1709/10, there lay an Age Undreamed Of...

(sorry, copyright/Conan joke)

I vacillated on which response to give, but settled on laughing over stunned.

 

[pemerton]

The presumption is necessary to ask the question that follows. I’m asking to learn what is the character of the licenses which are formed by copying the terms of the head license. Do these conform to the definition of sub-licenses? Does calling them sub-licenses actually make them sub-licenses? According to section 4, explicit in the text, the Contributors grant the copy licenses.

TomB

A sub-licence is a licence over property issued by someone who is a licensee the property owner, rather than the property owner. That's it.

The way the OGL works is that someone (eg WotC) licenses its copyrighted work, and as a term of that licence empowers the licensee to also license WotC's work on exactly the same terms. So both the head licence and the sub-licence have the same terms.

The licensee is also obliged, by the terms of their contract with WotC, to offer to license their own works, in which they own the copyright but which are derivative of WotC's work, on the same terms.

So suppose W licenses X to A. A then publishes a work that contains both X and Z, where Z is derivative of X. If B then takes up A's offer (eg suppose that W = WotC and A = Paizo, and then B writes a PF supplement) then B's licence in respect of Z is not a sub-licence, as A is licensing their own OGC, and B's licence in respect of X is a sub-licence, as A is licensing W's OGC by exercising their contractual power to do so. Both those licences are identical in their terms, and those terms are stated in the OGL.

 

[tomBitonti]

A sub-licence is a licence over property issued by someone who is a licensee the property owner, rather than the property owner. That's it.

The way the OGL works is that someone (eg WotC) licenses its copyrighted work, and as a term of that licence empowers the licensee to also license WotC's work on exactly the same terms. So both the head licence and the sub-licence have the same terms.

The licensee is also obliged, by the terms of their contract with WotC, to offer to license their own works, in which they own the copyright but which are derivative of WotC's work, on the same terms.

So suppose W licenses X to A. A then publishes a work that contains both X and Z, where Z is derivative of X. If B then takes up A's offer (eg suppose that W = WotC and A = Paizo, and then B writes a PF supplement) then B's licence in respect of Z is not a sub-licence, as A is licensing their own OGC, and B's licence in respect of X is a sub-licence, as A is licensing W's OGC by exercising their contractual power to do so. Both those licences are identical in their terms, and those terms are stated in the OGL.

I understand all of that.

How do you conform that to the explicit text: “The Contributors grant you”?

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

Bold added by me.

The use of “sub-license” seems to be in conflict with the bolded text.

(A casual read of Section 4 is that the Contributors are granting a license, as a consequence of every new agreement. I can’t say how that fits into usual legally acceptable steps of contract formation. Evidently it doesn’t. However, the text seems pretty clear.)

TomB

 

[pemerton]

I understand all of that.

How do you conform that to the explicit text: “The Contributors grant you”?



Bold added by me.

The use of “sub-license” seems to be in conflict with the bolded text.

How so?

Consider my example above: the contributors are the owners of the copyright in the OGC: W owns X, and A owns Z. B enters into a contract with A, and A grants B a licence in respect of Z. A also sub-licences X to B, thus bringing it about that W has granted a licence to B in respect of X.

Those two suites of permissions and powers granted to B - one in respect of Z and one in respect of X - are the consideration that flows B's way and thus helps support the contract.

 

[tomBitonti]

How so?

Consider my example above: the contributors are the owners of the copyright in the OGC: W owns X, and A owns Z. B enters into a contract with A, and A grants B a licence in respect of Z. A also sub-licences X to B, thus bringing it about that W has granted a licence to B in respect of X.

Those two suites of permissions and powers granted to B - one in respect of Z and one in respect of X - are the consideration that flows B's way and thus helps support the contract.

Is this a proper description of your example?

(I'm finding two paths by which B obtains licenses. I think both paths are possible, but I'm not sure. I'm not sure they are meaningfully different, although, my hunch is that the existence of the second path is very important.)

---

W owns X
A owns Z1
B owns Z2

W sets X as OGC, becoming a contributor.

A accepts the OGL as an agreement with W, and uses X; A obtains a license (OGL[WXA]) from W to use X. A contributes Z1 as OGC, becoming a contributor.

B accepts the OGL as an agreement with W, and uses X and Z1; B obtains a license (OGL[WXB]) from W to use X; B obtains a license (OGL[AZ1B]) from A to use Z1. B contributes Z2 as OGC, becoming a contributor.

-- or --

B accepts the OGL[WXA] as an agreement with A, and uses X and Z1; B obtains a license (OGL[WXA][WXB]) from W to use X; B obtains a license (OGL[WXA][AZ1B]) from A to use Z1. B contributes Z2 as OGC, becoming a contributor.

OGL is the head license agreement.

OGL[WXA] is the license issued by W to A to use X.

OGL[WXB] is the license issued by W to B to use X.
OGL[AZ1B] is the license issued by A to B to use Z1.

-- or --

OGL[WXA][WXB] is the license issued by W to B to use X, obtained from OGL[WXA].
OGL[WXA][AZ1B] is the license issued by A to B to use Z1, obtained from OGL[WXA].

---

TomB

 

[clearstream]

In the case of an option, there is normally a contract between A and B (a lease or licence or whatever) with one term of the contract being an offer to sell that is not revocable at will. But there is an actual mental state that constitutes that offer, namely, the contracting party entering into the option agreement with the other party.

Could the requisite mental state be found in the contemplation of future licensees without limit, without needing to know who those licensees will be?

I can imagine constructing an offer to "every person born on Tuesday" and thus even without knowing that Jo Gray will come to be born on the third Tuesday in May 2026, I have - here in January 2023 - a mental state that encompasses my extending an offer to them. More generally, we can imagine acting in some way toward a set of parties based upon characteristics that define them. Toward every entity like this, essentially.

Caveated that it's a long thread and perhaps somewhere above "mental state" is defined in a technical way that precludes this.

 

[pemerton]

Could the requisite mental state be found in the contemplation of future licensees without limit, without needing to know who those licensees will be?

I can imagine constructing an offer to "every person born on Tuesday" and thus even without knowing that Jo Gray will come to be born on the third Tuesday in May 2026, I have - here in January 2023 - a mental state that encompasses my extending an offer to them. More generally, we can imagine acting in some way toward a set of parties based upon characteristics that define them. Toward every entity like this, essentially.

Caveated that it's a long thread and perhaps somewhere above "mental state" is defined in a technical way that precludes this.

You're making an offer to all the world, with a condition of acceptance being born on a Tuesday. Seems arbitrary but fine. You can withdraw it at will. That last bit differs from what CC sets out to achieve.

 

[pemerton]

Is this a proper description of your example?

(I'm finding two paths by which B obtains licenses. I think both paths are possible, but I'm not sure. I'm not sure they are meaningfully different, although, my hunch is that the existence of the second path is very important.)

---

W owns X
A owns Z1
B owns Z2

W sets X as OGC, becoming a contributor.

A accepts the OGL as an agreement with W, and uses X; A obtains a license (OGL[WXA]) from W to use X. A contributes Z1 as OGC, becoming a contributor.

B accepts the OGL as an agreement with W, and uses X and Z1; B obtains a license (OGL[WXB]) from W to use X; B obtains a license (OGL[AZ1B]) from A to use Z1. B contributes Z2 as OGC, becoming a contributor.

-- or --

B accepts the OGL[WXA] as an agreement with A, and uses X and Z1; B obtains a license (OGL[WXA][WXB]) from W to use X; B obtains a license (OGL[WXA][AZ1B]) from A to use Z1. B contributes Z2 as OGC, becoming a contributor.

OGL is the head license agreement.

OGL[WXA] is the license issued by W to A to use X.

OGL[WXB] is the license issued by W to B to use X.
OGL[AZ1B] is the license issued by A to B to use Z1.

-- or --

OGL[WXA][WXB] is the license issued by W to B to use X, obtained from OGL[WXA].
OGL[WXA][AZ1B] is the license issued by A to B to use Z1, obtained from OGL[WXA].

---

TomB

I don't follow any of this.

Just two examples:

W sets X as OGC, becoming a contributor.​

This is not a legally meaningful statement. Copyrighted material becomes OGC solely in the context of a contractual agreement to license it under the OGL, A party becomes a contributor only pursuant to a licence agreement in the terms of the OGL. OGC and Contributor are not notions that have any legal meaning or effect outside of the context of a contract having the terms of the OGL.

B accepts the OGL[WXA] as an agreement with A​

To me this is not comprehensible. B can accept an offer from A, or an offer from W; that offer can be to license some work; if it is an offer from A to license work that W not A owns, but which A is empowered to license via an agreement with W, then that offer can also be described as an offer to sub-license. B cannot accept an abstract object, or a relationship - thus, for instance, it makes no sense to say that B accepts the licence agreement between W and A in respect of W's work X.

I don't know what concepts you are meaning to deploy. But the concepts you actually need are the standard concepts of contract law: offer, acceptance, and terms. Parties are free to choose whatever terms they like (within legal limits). In the context of WotC's licensing regime, they are all using the same terms - the ones that are set out in the text of the OGL.

 

[tomBitonti]

Just two examples:

W sets X as OGC, becoming a contributor.
This is not a legally meaningful statement. Copyrighted material becomes OGC solely in the context of a contractual agreement to license it under the OGL, A party becomes a contributor only pursuant to a licence agreement in the terms of the OGL. OGC and Contributor are not notions that have any legal meaning or effect outside of the context of a contract having the terms of the OGL.

Except, how does the SRD become OGC? W (meaning, WotC) does not use any license agreement to make the SRD open content. The discussion (this thread) previously established Contributors are publishers of OGC, that WotC is a contributor (otherwise, how does the SRD become material for section 4?), and they did not become one by accepting the OGL.

Im still reading through the second part of your post.

TomB