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

[kjdavies]

I am sorry that you feel it was not helpful.

I will note that the text you quoted was not a response to @kjdavies asking about the meaning of revocation in contract law (i.e. as used in treatises, judges and lawyers), but it was a response to @kjdavies asking about the meaning of revocation in a contract (i.e. as used by parties to a contract). Those are very different questions with different answers.

I could have written a post about what revocation means in general English usage, or what revocation means to the community of licensing professionals. That post would have a very different tone, stressing the determinacy of contractual interpretation over its indeterminacy.

My own feeling if that the post placing the parties' intent at the heart of contractual interpretation, and the resulting indeterminacy was more helpful in responding to @kjdavies question. I am trying to be helpful to @kjdavies based on nothing more than a couple of lines of text in a forum post, but I freely admit that I could be wrong and a different post with a different tone and emphasis may have been more helpful to @kjdavies. (And this is a good point to state that the fact I don't really understand @kjdavies particular situation, and thus it is difficult to know how to be helpful, is one reason that this is not legal advice to @kjdavies.)

I would suggest that if believe my post was not helpful, and you are trying to be helpful to be @kjdavies, it may be better for you to respond directly to @kjdavies with your own views about the best way to respond to his questions.

(It may also be helpful for @kjdavies to evaluate your view if you posted your identity and credentials, as other legal professionals have, but I believe you have not.)

Cheers,


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In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering 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.

Tag me much?

If it means anything, @bmcdaniel, I found that post illuminating and very helpful for my understanding. You answered the questions I was trying to ask in a way I followed, even sleepy as I was.

I'm trying to feel this out based on logic, because I have something of an interest in the outcome, but I lack the vocabulary.

(I helped a friend study for the LSAT many years ago, blew him away on the practice exams... he went on to law school and told me I was fortunate to not go there because even though I'm highly logical, the vocabulary is different enough to be a different language and I'd be very aggravated...)

 

[bmcdaniel]

Right, I was seeing a distinction between 'revoked' and 'terminated'. To my mind 'revoked' is like being withdrawn or backed out of, while 'terminated' means 'ended'... I see a distinction between those words that might not exist in law.

Your instinct that there may be a distinction is not incorrect. Words invariably carry a connotation with them, and a good drafter will choose their words to take advantage of the connotations in order to help the parties and the courts understand the parties intentions. For example, to me "revocation" carries with it a connotation that it is a unilateral action that one party to an agreement can take to cease contractual obligations where that party has granted something, whereas "termination" carries the connotation that it is some outside condition that is causing the cessation.

For example, if I wanted to express the idea that a painter can paint buildings on campus as much as they would like (and get paid for it), but the payer can cancel this arrangement, I would probably use "revoke." "Corporation agrees that painter may elect to devote time to re-painting any buildings on campus designated by corporation as in need of painting, and corporation shall pay painter $100 per hour for time spent painting; provided that Corporation may revoke this agreement at any time in its sole discretion by notice to painter, and following revocation, painter shall have no further rights to payment hereunder."

Contrariwise, if I wanted to express the idea that painter's obligations are subject to a force majeure clause, I would probably use "termination." "In exchange for $100 per hour, painter agrees to paint the buildings on campus designated by corporation; provided that in the event of fire, flood, riot, epidemic or other act of God affecting the campus, this agreement shall be terminated and the parties shall have no further rights or obligations hereunder."

Revocation and termination essentially mean the same things here: cancellation of contractual obligations. However, one term or the other provides a different connotation that is appropriate in different contexts.
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In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering 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.

 

[S'mon]

As far as litigation culture is concerned, I don't have as strong a sense of it but what I have heard is that US litigation culture (including courtroom behaviour) is far more aggressive than in Australia.

Absolutely! And one might even suspect that attitude of US litigators sometimes rubs off on their behaviour outside the courtroom...

 

[Bolares]

 

[bmcdaniel]

(I helped a friend study for the LSAT many years ago, blew him away on the practice exams... he went on to law school and told me I was fortunate to not go there because even though I'm highly logical, the vocabulary is different enough to be a different language and I'd be very aggravated...)

True story: before I was a lawyer, I was an engineer. My first years at law school, which mostly involves reading case opinions, was infuriating for me because judges writing opinions are incredibly sloppy with their reasoning, with terrible gaps in logic, unexpressed assumptions, questionable factual assertions not in the record, etc., etc. It took a lot of adjustment to grok that case opinions are not actually legal analysis, but instead are persuasive writing that, for its persuasive power, has the appearance of legal analysis. Its a very different world than engineering, where if your logic doesn't hold up, the bridge falls down (or in my case, the rockets don't fly).

 

[Snarf Zagyg]

True story: before I was a lawyer, I was an engineer. My first years at law school, which mostly involves reading case opinions, was infuriating for me because judges writing opinions are incredibly sloppy with their reasoning, with terrible gaps in logic, unexpressed assumptions, questionable factual assertions not in the record, etc., etc. It took a lot of adjustment to grok that case opinions are not actually legal analysis, but instead are persuasive writing that, for its persuasive power, has the appearance of legal analysis. Its a very different world than engineering, where if your logic doesn't hold up, the bridge falls down (or in my case, the rockets don't fly).

not sure how much persuasive writing goes into a PCA ....

I tend to disagree with this; in my experience, people who are engineers or come from certain other fields struggle when it comes to litigation, not because judicial opinions are persuasive writing, but because litigation necessarily involves a willingness to embrace ambiguities.

To use your example, most engineers don't have to tell their client, "Look, here's the deal. I really like this bridge design. I think this is the best design possible. If we commit to building it, I give it ... well, a 90% chance of not falling down immediately."

(This is why the one constant in my comments, to the extent there is one other than going for cheap laughs, is that you should be careful of certainty.)

 

[Bolares]

True story: before I was a lawyer, I was an engineer. My first years at law school, which mostly involves reading case opinions, was infuriating for me because judges writing opinions are incredibly sloppy with their reasoning, with terrible gaps in logic, unexpressed assumptions, questionable factual assertions not in the record, etc., etc. It took a lot of adjustment to grok that case opinions are not actually legal analysis, but instead are persuasive writing that, for its persuasive power, has the appearance of legal analysis. Its a very different world than engineering, where if your logic doesn't hold up, the bridge falls down (or in my case, the rockets don't fly).

again, this baffles me (and I love it).

 

[S'mon]

The OGL is not a unilateral contract. A promise is made to permit the use of Open Game Content in exchange for not using Product Identity or making claims of compatibility.

I agree with nearly all your post Anon, but:

The offer in the OGL afaics meets the definition of a Carlill c Carbolic Smokeball Unilateral Offer Contract in English Law. It is accepted by your performance, without need to notify the offeror of your acceptance.

 

[bmcdaniel]

Tag me much?

If it means anything, @bmcdaniel, I found that post illuminating and very helpful for my understanding. You answered the questions I was trying to ask in a way I followed, even sleepy as I was.

Thank you for your kind words. For what its worth, much of my day-to-day work involves explaining little bits of the law or interpretation of agreements to clients trying to be useful and helpful. To be useful necessarily involves tightening the focus to the issue at hand, rather than a grand top-down explanation of an entire body of law; that is why I emphasized that I was responding to you specifically rather than expounding more broadly. I'll let the professors do the expounding.

 

[bmcdaniel]

[Removed accidental double post. I seem to have a problem with that. Maybe because I have too many tabs open.]