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

[bmcdaniel]

You're a transactions guy!

You're too used to building things up and thinking about how things should work. You gotta learn how to tear it down. That's where the fun is.

Although my practice does involve a lot of transaction work (including drafting agreements), those agreements are active for a long time (and my clients stay with me) in a way that "transactional" doesn't really capture.

I've had plenty of opportunities to see agreements I've drafted a decade ago come under the stress of claims (although usually arbitration not litigation). I don't think many (modern) lawyers have that experience, and it has certainly colored my view about how to structure/draft transactions.

(Also, this is killing our hours, isn't it?)

I try to read only during break-time (and I think I post a lot less than others).

 

[bmcdaniel]

I think Ryan Dancey did a solid for the industry with the OGL. I think that's why he has always been considered its greatest champion, and the person who is most responsible for the release of the OGL.

...

I think he's being completely honest, but I also think that he (like all of us) is prone to wishcasting.

For these reasons, I suspect that a court would pay more attention to the record of what Ryan Dancey said and wrote when he was still employed at WOTC contemporaneously with the issuance of OGL 1.0(a), rather than current testimony about what his intentions were at the time.

From what I understand, there is an abundance of contemporaneous statements about the irrevocability of OGL 1.0(a) by Ryan Dancey (and others), but I haven't actually looked into it myself.

 

[Snarf Zagyg]

Although my practice does involve a lot of transaction work (including drafting agreements), those agreements are active for a long time (and my clients stay with me) in a way that "transactional" doesn't really capture.

I've had plenty of opportunities to see agreements I've drafted a decade ago come under the stress of claims (although usually arbitration not litigation). I don't think many (modern) lawyers have that experience, and it has certainly colored my view about how to structure/draft transactions.

I was kidding, mostly. The "transaction guy" I work with always jokes that he doesn't even know where the courthouse is.

There is some truth to what I said, though. Transactional people are always trying to get things done. Litigators? We're fine if the world burns ....

 

[Siltoneous]

On a real world note: I got my first communication from a DtRPG vendor. They explicitly stated the fear of being unable to sell their content through the site:

Upcoming changes to the Open Game License have forced us to face the reality that in the very near future we may no longer be able to continuing selling our line of more than 130 covered titles

As a result they are now offering at least 80% of large content bundles, and 90% off of a bundle consisting of over 400+ OGL products. Torn on this one: I'd feel like a cad taking advantage of their unfortunate position, but would I be a fool for not taking 'em up on it. Horrific.

 

[bmcdaniel]

I was kidding, mostly. The "transaction guy" I work with always jokes that he doesn't even know where the courthouse is.

There is some truth to what I said, though. Transactional people are always trying to get things done. Litigators? We're fine if the world burns ....

I think both perspectives are useful; its a matter of emphasis and relevance. For example, I think @Steel_Wind did good service to remind everyone that, regardless of close legal analysis of contractual doctrine, when it comes to actual litigation, it is very important to be able to tell a story about which side is the "good guy" and which side is the "bad guy."

I do think litigators tend to over-focus on the story elements, and consequently the indeterminacy of legal claims. As you have noted, few legal disputes actual go to litigation, and overwhelmingly those that do go to litigation are those where the underlying legal rights are uncertain or ambiguous. From the (correct) statement that "most litigation involves lots of uncertainty," many lay-people draw the (incorrect) conclusion that "most legal claims/disputes are uncertain." To put it simply: litigated claims are not an unbiased sample of legal claims.

Of course, its always best if your client has both a good story AND doctrine on its side.

 

[DavyGreenwind]

I thought that the OGL was a license not a contract as well and then I read the appeals ruling in Jacobsen v. Katzer.


This to me means a license like the OGL should be considered a contract as it fulfills all the elements of contracts including economic consideration. And that the rules pertaining to non-exclusive copyright license grants do not apply.

The OGL is both.

The licensing agreement is a contract whereby WotC grants people a license (described in the contract) in exchange for the grantee abiding by the conditions of the license. The license is the consideration, not the contract!

License transactions will generally involve some kind of contract, otherwise it would not be a transaction, per se. There's no way you could use a copyright owned by someone else without it being a license, since permission to use property owned by another is basically the definition of a license.

You definitely do not want to argue that the OGL is "not a license." That kind of argument would actually work much in WotC's favor. Because if there was never a license in the first place, WotC could just break the contract, get sued for breach, pay a little, and then move on with no open license.

Katzer was not about whether a particular document was a license or a contract, but about what remedies were available to someone who violated the licensing agreement: a breach of contract claim, or a copyright infringement claim. Breaching a "mere covenant" in the licensing agreement only gives rise to a claim for breach of contract, but breaching a "condition of the license" gives rise to a copyright infringement claim.

So Katzer is a little beside the point, because you do not want to get sued by WotC for either of those things.

 

[DavyGreenwind]

But the case could conceivably expand - especially if WoTC lawyers are throwing crud at it to raise costs - into a general look at the copyrightability of RPGs, and a finding that WoTC basically own nothing except their trade marks.

I REALLY don't think WoTC would ever let this case go to judgement. I've said so upthread.

I agree; I think that's perfectly possible. If I were WotC, I would NOT want to test the SRD for copyrightability.

 

[Steel_Wind]

Kit Walsh wrote a brief column. In it, she wrote the following:

The OGL does not say that it is irrevocable, unfortunately. It’s possible that Wizards of the Coast made other promises or statements that will let the beneficiaries of the license argue that they can’t revoke it, but on its face it seems that they can.

I know. I saw it. I read it. She provided no particulars.

I would say that this is all accurate, in a brief statement, and correctly caveated. Certainly not worth ... well, you well not exactly kind, were you? You also spent some time misstating her qualifications.

She also worked for a time as an IP lawyer. But yes, when you are on for the EFF, you are a civil rights attorney pre-occupied with freedom of expression. There was no misstatement.

Again, I have repeatedly noted that I do not understand (a) you insistence on using Canadian law for everything, and (b) why you keep using the standard for a temporary injunction as if it was somehow dispositive for litigation?

I didn't say this arises only in the context of an injunction now - you did. This evidence goes to the merits in interpreting whether OGL 1.0a is revocable - and arises in the context of what the parties understood the agreement to mean, what they said about it, and how they conducted themselves under it. Where there is ambiguity, that's relevant evidence.

One thing I have learned, and I think most American attorneys will tell you, is that you rely on parol evidence and equitable principles (such as promissory estoppel) as a last resort. Actual practice in American courts (how the law is applied, even when the standards appear the same) is very different than Canadian or UK courts.

I wasn't framing this in terms of relying on an estoppel argument, but on the interpretation of the meaning of the agreement as the parties intended and understood it. You certainly could do so though, but the remedy estoppel supports (and your future rights under it) are of course very different and are less than any litigant would prefer. I have mentioned that here above, already.

This has no bearing on the contract. I appreciate that you feel strongly about this, but bolding and italicization doesn't make post hoc parol evidence more relevant.

This is sounding less collegial at this point in your reply. Perhaps you should step away for a bit?

Yeah, it doesn't work like that in the United States. You can't just intervene in a random case- which, again, we don't know what is being pled! I can't keep saying this but ... you're asking me to agree that Paizo would be able to intervene in a case, filed in another jurisdiction, against another defendant, with causes of action and evidence that might not apply to Paizo?

I'll pass on that invitation to agree, thank you!

The intervention would arise on the basis mentioned in the sentence you seemed to have ignored, which was presupposed on some declaration being sought under an identical contract in which the parties are each interested -- and upon which the parties each rely. The right to intervene is discretionary, sure, but arises under Rule 24(a)(2) of the Federal Rules of Civil Procedure on motion to the court. This is getting tedious. I don't think we are being as collegial now as we could choose to be. Fair?

I wasn't talking about pre-suit settlement. I was talking about what happens, in civil litigation in the United States. Cases settle, and they do so for a very good reason. The reason I mention that is because some people keep saying that a court (ahem) is going to resolve this, without first realizing that in the United States, for most issues we have juries, and (in addition!) any action is unlikely to be resolved by a trial.

As I have mentioned previously, ~98% of all civil cases are resolved shy of trial. The numbers which go to trial may change and vary a bit from region to region, year to year, and subject matter to subject matter, but the number is exceedingly LOW. No argument.

I was making a different point immediately above, in any event. Perhaps we were talking at cross-purposes, but we know where we are now.

-- she is (most likely) either uninformed of the extreme historical commercial facts of how the parties acted under the OGL 1.0a from 2008 through 2014,

Which is what I said -- and do say. She didn't discuss it with any particulars at all. I cannot believe that she was aware of those specific things, given what she wrote.

 

[kjdavies]

(IANAL) The thing is, as far as I can see the grant under section 9 do not require you to obey any 1.0a obligations as long as you are pulishing under a different, and authorized OGL (which means it is that lisence's obligation you need to abide to). It is the section 4 grant that require acceptance and compliance of 1.0a exactly.

(IANAL either) However, if I'm not mistaken if I want to use other open content I've licensed via OGL v1.0a (for instance, a monster from Green Ronin's Advanced Bestiary) I must do so under auspice of OGL v1.0a (because v1.1 can't license me to use it unless GRR licenses it themselves via v1.1), and the requirements of v1.1 require me to not comply with v1.0a.

v1.1 speaks only the SRD 5.1 and derived works, and I'm not totally sure about derived works unless WotC is using them (i.e. I'd have to go check again). I'm certain v1.1 does not grant use of the other SRDs ('Unlicensed Content') and derivative works.

 

[pemerton]

While wotc has the right to revoke the license as written I’d argue that the intent of the license was for it to be irrevocable.

Re your bolded: where does the text of the OGL v 1.0/1.0a confer that right on WotC?

Re your underlined: how do you reconcile that with the presence of section 13?

Clearly a licence granted pursuant to the term of the OGL v 1.0/1.0a is not irrevocable. That does not show that WotC has any sort of power to revoke it at will.

So what is the point of having an explicit termination clause if the legal landscape insists on drawing in all these implicit understandings that can only be removed by magic words introduced years later?

Section 13 makes clear what the consequence of breach is, both for the breaching licensee and for their sub-licensees. That's its point.

But..

• Where the case that upheld a licensor's right to terminate a perpetual license outside of the explicit termination clause?
• Where clause states that there is only a single way for the license to be terminated
• Where the clause also goes out of it ways to make sure that the sublicenses are not impacted by the issue with this one licensee.
• Where there documentation from multiple sources (websites faq, listserv, press releases) going back decades shows that the licensor considered the license irrevocable. That these have been available for 20 years.

I get you cited a lot of things to support individual points. but where is the case that evenly remotely approaches the situation outlined above? The closest I found was SCO v. IBM and SCO's case was partially wrecked by the fact they distributed the Linux operating system themselves which at the time (and still is) under the GPL v2 which gives a perpetual license grant but doesn't say it is irrevocable.

I don't know if there is any such case. I've already told you that licensing law is not my primary field of expertise.

What I am doing is simply explaining that, and why, certain simplistic arguments I have seen posted, that the presence of section 13 makes it "automatic" or "obvious" that there is no other power of termination of the agreement and/or revocation of the licence, seem wrong to me. The reason they seem wrong to me is that they are not applying, in any serious or systematic way, principles of contractual construction. (There is also @DavyGreenwind's point about remedy, which I also mentioned upthread at post #190.)

But at some point, folks have to step back and say "What is this all for?" "Who is being protected here?"

The OGL confers various permissions and powers on licensees. They in return come under obligations. When they exercise those permissions and powers, and create new (sub-)licensees, those new parties likewise gain permissions and powers and come under obligations.

The more you argue that the whole point of the OGL v 1.0/1.0a is to protect the position of 3PPs, the harder you seem to me to be making the case that consideration has flowed from them to WotC.

Sorry to be so testy about this but this thread keeps going round and round on the point of whether Wizards can revoke the OGL 1.0a or not.

I have made it clear that, in my view, WotC has no unilateral power to terminate their agreements and/or revoke the licences they have granted. That opinion does not rest on any sort of simplistic argument about section 13. It rests on basic principle of contract law. But given that I am not licensed to practise law in either my own or your jurisdiction - I am an academic, not a practitioner - I am certainly not offering you or anyone else legal advice.

I have been prepared to, and continue to be prepared to, explain in general terms what I think are better or weaker views about the operation and effect of the OGL. But if you want a serious opinion on the interpretation of the OGL v 1.0/1.0a, if for instance you are looking for reassurance that you yourself can keep publishing under it on the basis that WotC cannot lawfully revoke it, you will need to retain a lawyer. In my view you are not going to get what you want - either answers, or the skills to create your own answers - by reading a series of discussion board posts.