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

[Maxperson]

I link Snarf to bards...

He does like song.

 

[FrogReaver]

Translation: you suggest WotC persuade and/or bully Drive-Thru RPG to take down a large swath of OGL content.

Seeing as being the font of commercially available OGL content it its very reason for existence and most of its entire business model, I'm not sure that Drive-Thru would willingly do this, or why.

More to the point, what you are advocating for is called interference with contractual relations. It's actionable by the affected part(ies) against both WotC and Drive-Thru RPG. In the circumstances, it would likely meet the test for certification as a class proceeding, too. If you want to dump chum & blood in the water? That would certainly do it.

I'd ease off on the practical business advice, maybe?

No different than a song writer asking YouTube to remove a video of their song due to copyright claims.

It never ceases to amaze me how people can be soo certain things don’t work the way we have all seen them work throughout our whole lives.

 

[Steel_Wind]

No different than a song writer asking YouTube to remove a video of their song due to copyright claims.

It never ceases to amaze me how people can be soo certain things don’t work the way we have all seen them work throughout our whole lives.

But it is different. Youtube provides essentially no compensation to the random person who posted it.

In your example, the author of material under the OGL has a property interest in it, and unlike a poster on YouTube -- they have a prima facie legal right to sell it. Drive Thru is in a position, practically speaking, as a monopolist in selling OGL content online and has a contract with that author to provide a portion of the sale to him, her or it. It's not the same thing as a Youtube takedown notice. At all.

You want to go down that road? Be my guest. As long as greed and stupidity are legal, litigators will always have work!

Seriously though, your proposal will lead to a class action against WotC. It would be reckless and likely extremely costly, in an environment where treble damages for punitives is the presumptive rule.

It's okay to say "I didn't know that" or "I never considered that" as part of an online discussion. The Olympic Judge from Austria won't deduct marks from your perfect score of 10 for saying so.

 

[Greg Benage]

But it is different. Youtube provides essentially no compensation to the random person who posted it.

I hope this becomes irrelevant because WotC elects not to go this route, but I'd be interested in further discussion, using Amazon as an example instead of YouTube. They take down allegedly copyright- and trademark-infringing products all the time.

Here's a link to the Amazon IP Policy:

Here's a link to an article about the takedown process.

 

[FrogReaver]

But it is different. Youtube provides essentially no compensation to the random person who posted it.

You tube does pay those random people though…

In your example, the author of material under the OGL has a property interest in it, and unlike a poster on YouTube -- they have a prima facie legal right to sell it.

A distribution channel isn’t legally bound to carry your products. Doesn’t work that way.

Drive Thru is in a position, practically speaking, as a monopolist in selling OGL content online and has a contract with that author to provide a portion of the sale to him, her or it. It's not the same thing as a Youtube takedown notice. At all.

Sounds like exactly the same situation youtube is in with their users.

Seriously though, your proposal will lead to a class action against WotC. It would be reckless and likely extremely costly, in an environment where treble damages for punitives is the presumptive rule.

I’ve never seen anyone do a class action against youtube take down notices.

It's okay to say "I didn't know that" or "I never considered that" as part of an online discussion. The Olympic Judge from Austria won't deduct marks from your perfect score of 10 for saying so.

So take your own advice.

 

[FrogReaver]

I hope this becomes irrelevant because WotC elects not to go this route, but I'd be interested in further discussion, using Amazon as an example instead of YouTube. They take down allegedly copyright- and trademark-infringing products all the time.

Here's a link to the Amazon IP Policy:

Here's a link to an article about the takedown process.

Amazon is a much better example.

 

[Steel_Wind]

Question. Would the money WOTC receives from all third party sales on DMsGuild be considered compensation? (edit: I don't know all terms WOTC set out for publishers to sell on the DMsGuild).

Arguably yes, but really, the answer is No.

Products sold on DMs Guild (and Pathfinder Infinite) may include some OGL content, but their chief distinguishing feature is that they include protected content that is exempt from the OGL. Many (most?) products sole on DMs Guild don't include the OGL 1.0a notice within them as a consequence. Because they are selling protected content, that's why they sell it on DMs Guild instead of on the Drive-Thru page (yes I know they are hosted on the same site).

The key difference between the two is in compensation - DMs Guild sales take 50% off of the top. You only sell on DMs Guild/Pathfinder Infinite page if you have to. Revenue to the author is much higher % wise to sell it via the main Drive-Thru page.

 

[bmcdaniel]

I have already provided many citations throughout my arguments. But anyway, here are more:

...

Here's another quote from a federal court:

"A license by definition is not a permanent entitlement and does not operate to create an estate in land in the licensee. It merely constitutes permission to do certain things on the licensor's land. The licensor ordinarily can revoke it at any time, with or without a reason..." (applies to land, but the concept is the same).
Kapadia v. Chi. Transit Auth., No. 87 C 1919, 1987 U.S. Dist. LEXIS 4156, at *4-5 (N.D. Ill. May 15, 1987)

...

I can keep going, but I won't.

Because no other lawyer on this thread has cited a single source to support their arguments. I am the only one.

I don't have time to refute this point-by-point (given that I have actual work to do for clients), but the above, while not false, is extremely misleading.

For the non-lawyers out there: whenever you see the word "license" in this context you should interpret it as "permission to use." So, it is 100% correct to say that if person A gives person B a license (permission to use) some property or entitlement of person A, the license (permission to use) does not itself create an irrevocable right for person B to continue to use the property/entitlement. Or to put it differently, a mere license can be revoked by the licensor.

However, if person A and person B reach an agreement pursuant to which person A grants person B a license (permission to use) some property/entitlement of person A, then person A can revoke the license only pursuant to the terms of the agreement.

This is the difference between: (1) "I grant you permission to attend a dinner party in my dining room at 8 pm tonight" (mere license - revocable at will by the licensor); and (2) "If you sign this document and pay me $5, I grant you permission to live in the bedroom of my house for one month" (license to use land embedded in an agreement - not revocable by licensor except pursuant to the agreement). In context, this makes intuitive sense. If the user does not pay for the use of the land, there is no agreement, and the licensor can revoke the license. However, if the user does pay for the use of the land (and there is an otherwise valid agreement), then the licensor cannot unilaterally revoke the license.

Bringing this back to the OGL: this is why it is important to establish whether the OGL is an agreement. If the OGL is not an agreement, but is a mere license, then it can be revoked at will by the licensor. If the OGL is an agreement, then the license embedded in the agreement can be revoked only to the extent permitted by the agreement.

Cases and commentary that reference a license but which do not involve an agreement are completely beside the point. As a practical matter, people (including courts) often conflate a mere license and a license embedded in an agreement because (in context) it is clear what is under discussion. However, citation to caselaw or commentary that discusses the revocability of a mere license does not say anything at all about a license embedded in an agreement.

As noted in my prior post, the OGL has all the hallmarks of an agreement, i.e. an offer, a specified method of acceptance and a description of consideration. (Legal capacity of parties and illegality are not at issue).

Accordingly, a proponent of the view that WOTC may unilaterally revoke the OGL must take one of two positions:
1. Either the OGL does not constitute an agreement between WOTC and the user; or
2. The agreement constituting the OGL permits WOTC to unilaterally revoke the license.*

[* For the sake of completeness, this would include the position that the OGL agreement is revocable because the license failed to use "magic words" such as the word "irrevocable." Sometimes, legal agreements do require certain precise words for their meaning, such as in the creation of a power of attorney or the conveyance of land in certain states. Although I am willing to be convinced otherwise, a brief review of two copyright treatises (Epstein on Intellectual Property and Goldstein on Copyright), I believe that there no such magic words needed to license intellectual property. Instead, the scope and revocability of a license to use copyrighted materials is subject to ordinary principles of contractual interpretation.]

For what it is worth, 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.

Cheerio

 

[Vaalingrade]

I hope this becomes irrelevant because WotC elects not to go this route, but I'd be interested in further discussion, using Amazon as an example instead of YouTube. They take down allegedly copyright- and trademark-infringing products all the time.

Here's a link to the Amazon IP Policy:

Here's a link to an article about the takedown process.

They also copy and undercut people's products under their brand all the time too, so it's very relevant to OGL 1.1.

 

[GMforPowergamers]

I don't have time to refute this point-by-point (given that I have actual work to do for clients)

do you have ANY idea how many billable work hours many of us spend talking about this silly make believe game... come on you don't need to work...

This may also be why I am not better at and better paid at my job!!!


Edit: my tone doesn't always come through, that was sarcasm and my way of saying thanks for what you did do and say.