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

[DavyGreenwind]

I mean, check out the FAQ WotC had on their own site in 2004, available from Archive.org Open Game License:Frequently Asked Questions

Q: Can’t Wizards of the Coast change the License in a way that I wouldn’t like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even 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.

---

I'm sure we could just ask Ryan Dancey what his intentions were. I'm pretty sure they did not include "letting hungry hungry Hasbro crush any game publisher that refused to serve as a vassal."

This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.

So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."

I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.

So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their current policy, but I don't think it is an accurate representation of their own legal rights.

 

[h4b3rm4s]

On copyright of RPG classes, wouldn't protecting these general classes amount to a restriction on the use of a straightforward concept and thus restrict creativity, countering the purpose of copyright? There aren't many ways to effectively express that a character is a fighter or a monk etc.

 

[S'mon]

So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."

I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.

You think writing a contract is like writing legislation? I think @pemerton would have a thing or two to say about that!

Corporations are not Legislators (yet!), and unlike legislatures, they can't bind you with terms you've not agreed to. They can withdraw an offer, and they can usually terminate an indefinite contract agreement, on reasonable notice.

 

[Snarf Zagyg]

This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.

So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."

I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.

So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their current policy, but I don't think it is an accurate representation of their own legal rights.

Well, yes ... but legislation is sui generis and not the same as contract law. It's well settled that legislatures cannot bind future legislatures with basic legislation- but that's neither here nor there when it comes to contract law.

 

[RangerWickett]

This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.

So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."

I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.

So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their current policy, but I don't think it is an accurate representation of their own legal rights.

I think you're perhaps putting the horse after the cart. Yes, a law can be revoked, but you GENERALLY can't say after the fact that something was illegal if it happened during a period when the law clearly said it was legal.

There's already established copyright law, and the OGL was an agreement saying that the rights holder of anything released as Open Gaming Content waives their ability to prevent copying, so long as that content is published with the OGL.

Once you waive a right, you cannot post hoc assert that right for things you did while you had waived it.

WotC can certainly say "We're not releasing any more OGC material," but I don't think they can say, "That stuff we released is ours again."

 

[DavyGreenwind]

Well in English law we have "over riding oral undertaking" - even where the words on the page are clear, if you tell someone they mean something different...

From what I can tell, the meaning of 'perpetual' has been held to depend on the context.

For this, I refer you to the parol evidence rule, which basically says that discussions or agreements outside of the contract are generally only acceptable to prove the meaning of ambiguous terms (or to prove fraud). If a term is not ambiguous, a court generally will not look at outside evidence to ascertain the meaning of the term. See this link:
(https://content.next.westlaw.com/pr...construction,or contradict a written contract).

In some states, the context-dependent approach is indeed the dominant principle by which contracts are interpreted, and parol evidence (or evidence outside of the contract) can often be introduced (even in these states, the words on the page will generally trump words not on the page).

But in the majority of states, the dominant approach is the "four corners" approach, whereby a court will not look past the four corners of a document to ascertain its meaning (with very limited exceptions). This is the approach New York takes, and because of this, many companies will specify that their contract is under New York law, even if none of the parties lives in New York or even the United States.

 

[S'mon]

For this, I refer you to the parol evidence rule, which basically says that discussions or agreements outside of the contract are generally only acceptable to prove the meaning of ambiguous terms (or to prove fraud). If a term is not ambiguous, a court generally will not look at outside evidence to ascertain the meaning of the term. See this link:
(https://content.next.westlaw.com/practical-law/document/Ibcb5f94d7cfa11e79bef99c0ee06c731/Parol-Evidence-Rule?viewType=FullText&transitionType=Default&contextData=(sc.Default)&firstPage=true#:~:text=A rule of contractual construction,or contradict a written contract).

In some states, the context-dependent approach is indeed the dominant principle by which contracts are interpreted, and parol evidence (or evidence outside of the contract) can often be introduced (even in these states, the words on the page will generally trump words not on the page).

But in the majority of states, the dominant approach is the "four corners" approach, whereby a court will not look past the four corners of a document to ascertain its meaning (with very limited exceptions). This is the approach New York takes, and because of this, many companies will specify that their contract is under New York law, even if none of the parties lives in New York or even the United States.

Yes, I'm aware of the parol evidence rule. I teach it.

It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.

 

[GMforPowergamers]

Yes, I'm aware of the parol evidence rule. I teach it.

It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.

as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.

 

[DavyGreenwind]

Well, yes ... but legislation is sui generis and not the same as contract law. It's well settled that legislatures cannot bind future legislatures with basic legislation- but that's neither here nor there when it comes to contract law.

True. But it is apt as an example, because of the strange nature of an open license. An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.

Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.

It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.

The open license will always be valid for any products published while the open license was open. WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any new material as of the date it was revoked.

 

[DavyGreenwind]

as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.

That is absolutely the nature of law.