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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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<blockquote data-quote="pemerton" data-source="post: 8922905" data-attributes="member: 42582"><p>There seems to be some confusion in some recent posts about what a licence is, in legal terms.</p><p></p><p>A licence is a <em>personal right</em> - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property.</p><p></p><p>By definition, therefore, a licence is a legal relationship - one of <em>permission</em> - between a particular party (the licensee) and a property owner (the licensor).</p><p></p><p>If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter.</p><p></p><p>Speaking in the abstract, it is possible that a sub-licence might involve different terms from the head licence - eg W licenses to A royalty free, and then A sub-licenses to B and requires that B pay A (or W) $1 per copy made. Whether or not A has the power to impose those sorts of conditions on B, as part of the sub-licence, will depend on the nature of the power that W conferred on A. What the consequence for B of breaching such a condition would be will depend on many considerations, both of factual and contextual detail and also legal principle (eg does the licence come to an end such that B is liable to W for interfering with W's property? Or does B retain a licence but incur an obligation to play A damages for breach of contract? Or something else?)</p><p></p><p>But in the context of the OGL, the power to sub-license is limited to sub-licensing on the exact terms of the OGL. So each party in the chain of contracts enters into exactly the same licensing arrangement with the upstream contributors whose work has been licensed to those downstream.</p></blockquote><p></p>
[QUOTE="pemerton, post: 8922905, member: 42582"] There seems to be some confusion in some recent posts about what a licence is, in legal terms. A licence is a [i]personal right[/i] - ie it is not proprietary - that provides a bar against a claim for interference with the licensor's property. By definition, therefore, a licence is a legal relationship - one of [i]permission[/i] - between a particular party (the licensee) and a property owner (the licensor). If W grants a license to A in respect of W's property X, this does not affect W's ownership of X, and it does not grant A any property rights in respect of X. Therefore A has no rights of their own to license in respect of X. If W grants A a power to create sub-licences in respect of X, what W has done is grant A a power to give third parties permissions in respect of W's property. Describing them as sub-licences is a description of their mode of creation, not their subject matter. Speaking in the abstract, it is possible that a sub-licence might involve different terms from the head licence - eg W licenses to A royalty free, and then A sub-licenses to B and requires that B pay A (or W) $1 per copy made. Whether or not A has the power to impose those sorts of conditions on B, as part of the sub-licence, will depend on the nature of the power that W conferred on A. What the consequence for B of breaching such a condition would be will depend on many considerations, both of factual and contextual detail and also legal principle (eg does the licence come to an end such that B is liable to W for interfering with W's property? Or does B retain a licence but incur an obligation to play A damages for breach of contract? Or something else?) But in the context of the OGL, the power to sub-license is limited to sub-licensing on the exact terms of the OGL. So each party in the chain of contracts enters into exactly the same licensing arrangement with the upstream contributors whose work has been licensed to those downstream. [/QUOTE]
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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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