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

[FrogReaver]

I'm happy to be corrected, especially by @S'mon if he thinks I'm getting this wrong.

But here's my take.

Suppose I ask you to look after my house on the weekend while I'm away. You ask "Is it over if I have a few friends over on Saturday evening?" and I reply "Sure!"

Now I have licensed you to be on my land and in my house. And I have authorised you to license your friends - ie to create sub-licences.

Suppose my plans fall over: I get sick, and come back earlier than planned, on Saturday evening. I come in and say "Sorry everyone, I'm contagious and need to rest, you'll have to all go home." I've terminated your licence, and also the sub-licences. This also illustrates that the difference between a licence and a sub-licence is not their subject matter (for both you and your friends, the licence has the same subject matter - ie hanging out in my house) but their mode of creation - you dealt directly with me, whereas your friends didn't, they dealt only with you in circumstances where I had vested you with an appropriate legal power.

My understanding from the lawyers are that property rights are quite a bit different. Indeed there are many specific laws around property that don’t apply to other circumstances. Eviction laws are just one such example. One other important thing I note in your hypothetical situation is that there is extremely minimal if any harm occurring to the licensees or sublicensees, but that probably matters less to whether it's revokable and more around whether the licenser can incur damages from the revocation.

Relating this to the OGL v 1.0/1.0a:

The argument that WotC can revoke vis-a-vis Matt Finch is based on an analogy of the contractual licence that fails to specify its revocability, and the gratuitous licence in my story just above. If that argument is sound (I personally have doubts that it is, as I've posted many times in this thread), I don't see how it can apply to Matt but not his sub-licensees. Or to put it another way, I can't see how the licensor's rights to turf out all the visitors can be stronger against the one they directly transacted with, than against the ones who are only there at the invitation of the person being turfed out.

My layman's understanding of U.S. law on this subject is
1. If a license specifies the grounds on which it can be terminated/revoked, then once accepted it normally cannot be terminated/revoked on any other grounds.
2. If a license specifies a duration, then it's normally not terminatable/revocable to those that have accepted it.
3. The licenser can himself can withdraw the offer of the license at any time.
4. However, if he has explicitly licensed out the ability to sublicense offers then he cannot withdraw that ability at anytime as going so would break the license agreement he has with his direct licensee.

Turning to Section 13:

Section 13 is expressly concerned with termination for breach, and its clear purpose seems to be to ensure that links in the chain/network don't break because of one party breaching, provided those downstream of them cure any inherited breaches.

Section 13 is labeled Termination. Thus, it is expressly concerned with all forms of termination. It just so happens to be that a breach is the only available means of termination within this license.

That's one reason why it calls out sub-licensees. Another is this: if you lose your contractual rights due to breach, you have nevertheless agreed that the rights to your content that you sent downstream (to the sub-licensees) remain in place. But I don't see how section 13 gives sub-licensees any general claim to enjoy the benefits of the licence that are stronger than those to whom the the benefits were directly licensed.

I agree here. If WOTC can revoke the license for direct licensees, then they can revoke the license for sublicensees. What laypeople often mean by revocation is 'withdrawal of the offer to license'. The claim then being made would be what I've stated in 4 above.

 

[S'mon]

Whew, what a thread! In case any of the lawyers are still present, I have a question not yet asked: is there any room for a third-party test case in court in a case like this? All this Anglo-Saxon common law strangeness baffles me completely...

Could a case be manufactured by someone not-Hasbro-or-Wizards that would settle a relevant question about the OGL? Or would that be completely meaningless even if possible?

Here in England at least, the courts really don't like artificially manufactured test cases. They'd basically say to go away and wait to see if Hasbro sues you for real.

 

[jgbrowning]

Here in England at least, the courts really don't like artificially manufactured test cases. They'd basically say to go away and wait to see if Hasbro sues you for real.

Question: Would WotC officially stating that all prior versions of the OGL (other than 1.1) are officially unathorized and that all OGC released under those licenses is now not open content be enough for a breach of contract suit against them? (assuming the OGL would be considered a contract, of course, and that the statement was clearly made and that intent was clearly expressed.).

joe b.

 

[FrogReaver]

Also worth noting is that section 4 describes who is licensing the content and it specifies that as 'the Contributors'. Not WOTC. Does that have any bearing on WOTC's ability to revoke a license without the other contributors on board?

 

[FrogReaver]

Another interesting note:

Section 3 of OGL 1.0a sounds an awful lot like some of the language of OGL 1.1 that many were scared of.
"Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."

 

[S'mon]

I'm happy to be corrected, especially by @S'mon if he thinks I'm getting this wrong.

But here's my take.

Suppose I ask you to look after my house on the weekend while I'm away. You ask "Is it over if I have a few friends over on Saturday evening?" and I reply "Sure!"

Now I have licensed you to be on my land and in my house. And I have authorised you to license your friends - ie to create sub-licences.

Suppose my plans fall over: I get sick, and come back earlier than planned, on Saturday evening. I come in and say "Sorry everyone, I'm contagious and need to rest, you'll have to all go home." I've terminated your licence, and also the sub-licences. This also illustrates that the difference between a licence and a sub-licence is not their subject matter (for both you and your friends, the licence has the same subject matter - ie hanging out in my house) but their mode of creation - you dealt directly with me, whereas your friends didn't, they dealt only with you in circumstances where I had vested you with an appropriate legal power.

Relating this to the OGL v 1.0/1.0a:

The argument that WotC can revoke vis-a-vis Matt Finch is based on an analogy of the contractual licence that fails to specify its revocability, and the gratuitous licence in my story just above. If that argument is sound (I personally have doubts that it is, as I've posted many times in this thread), I don't see how it can apply to Matt but not his sub-licensees. Or to put it another way, I can't see how the licensor's rights to turf out all the visitors can be stronger against the one they directly transacted with, than against the ones who are only there at the invitation of the person being turfed out.

Turning to Section 13:

Section 13 is expressly concerned with termination for breach, and its clear purpose seems to be to ensure that links in the chain/network don't break because of one party breaching, provided those downstream of them cure any inherited breaches. That's one reason why it calls out sub-licensees. Another is this: if you lose your contractual rights due to breach, you have nevertheless agreed that the rights to your content that you sent downstream (to the sub-licensees) remain in place. But I don't see how section 13 gives sub-licensees any general claim to enjoy the benefits of the licence that are stronger than those to whom the the benefits were directly licensed.

I don't think OGL 1.0 is revocable by WoTC, and I'd be wary of reasoning by analogy with gratuitous licences over property - we were criticising the OP for doing that upthread.

But yes if a court somehow said that the licence was somehow revocable for direct licencees, I think they'd rule it was revocable for sub-licencees too. I think it's clearly intended that sub-licencees can have their licence revoked for breach. The licence is just trying to say that sub-licencees don't automatically lose their rights due to a breach higher up the chain.

 

[S'mon]

Question: Would WotC officially stating that all prior versions of the OGL (other than 1.1) are officially unathorized and that all OGC released under those licenses is now not open content be enough for a breach of contract suit against them? (assuming the OGL would be considered a contract, of course, and that the statement was clearly made and that intent was clearly expressed.).

joe b.

This may constitute a 'repudiatory breach' by WoTC. Conceivably you could sue for your losses arising from their breach, your 'expectation loss' in English law. But I think that would be a significantly tougher case to win than a case simply defending your rights under the contract. I guess some kind of group claim against WoTC by the affected 3PPs would be possible. But this is the kind of case where you really would be paying high powered lawyers a lot of money. It's the kind of thing big corporations do when they're aggressively asserting their rights. Conversely defending a claim by WoTC that they have somehow revoked your licence rights, despite no breach on your part, should be much simpler and easier I think.

Just my opinion, I am not your lawyer, no liability etc.

 

[Ben from Periapt Games]

1. If a license specifies the grounds on which it can be terminated/revoked, then once accepted it normally cannot be terminated/revoked on any other grounds.

The lawyers commenting in this thread haven't seemed so sure, because while OGL 1.0a does specify one criterion for termination, it doesn't include any statement that that's the only criterion.

 

[FrogReaver]

The lawyers commenting in this thread haven't seemed so sure, because while OGL 1.0a does specify one criterion for termination, it doesn't include any statement that that's the only criterion.

Doesn't have to. If I make a contract that I'll give you 100 dollars in exchange for never speaking to me again, but am silent on whether I'll also give you my dog, that doesn't mean you have an argument in the contract that you also should have my dog.

 

[Ulfgeir]

The EFF has weighted in with an opinion.

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