Can WotC be forgiven?

[Maxperson]

It has been enjoyable seeing that a number of people who, for the past few months, have loudly proclaimed that they will never give WoTC another dollar for (REASONS) will now, most assuredly, never give WoTC another dollar for (MUCH LOUDER REASONS).

Eh, I think I'm getting too cynical.

I didn't mean it the other five times. THIS time, though...

 

[clearstream]

No. When someone shows you who they are, believe them.

This adage does not apply very well to corporations. They are engineered to be profit-seeking entitites, and (I think some would argue more importantly) to be risk-taking... which in a sense means they are structured to drive learning. (Hence arrangements that protect directors and limit liability.)

Corporations should test strategies. That's kind of their point. Once a corporation finds a strategy wanting, that enters into 'memory' and is typically avoided in future. If public pressure makes a corporation change course, there's no reason not to embrace that win.

OTOH if one is concerned about the leopard not changing its spots, then I think one would need to see a company adopt articles that bound its directors to govern in a different fashion. Which goes a bit further than the terms under which a company seeks to control and license its IP.

 

[clearstream]

I don't know,...maybe 10 years of good behavior.

They've admitted they think the OGL 1.0(a) is revocable. That is the very heart of the matter.

Isn't it the case that so far as the better informed among us believe, the OGL is revocable; regardless of what Hasbro do or do not admit?

 

[S'mon]

Isn't it the case that so far as the better informed among us believe, the OGL is revocable; regardless of what Hasbro do or do not admit?

In my view it's not revocable. More accurately, it's unlikely a court would say it was revocable. It is unlikely IMO that a court would say Hasbro could legally prevent others from using released SRD material with OGL 1.0. The licence gives users the right (& obligation!) to sub-licence the OGC in their publications to future users/publishers. That's why it's an Open License. It opens up the material for use.

 

[see]

see's suggested draft not far upthread both contains a statement of irrevocability and establishes a possibility of termination, and so in my view is not free of interpretive complexity. But it likewise would not provide any protection against WotC's purported exercise of conjectured contractual powers unless parties to it were prepared to defend their rights under it.

At least, this is how it seems to me.

I agree entirely.

As far as I am concerned, adding the "irrevocable" statements would do exactly two things. It would serve as symbol that WotC would not in the short term throw their weight around, and it would avoid a WotC of ten years from now having one of its lawyers say, in an internal discussion "Well, it doesn't say irrevocable, so we can make the argument we can revoke it under (unilateral license precedents)".

That isn't as good for the health of the license as someone actually standing up to WotC to defend their rights OGL 1.0a, and winning in court as necessary. But losing a fight isn't something WotC can unilaterally do, and they certainly can't credibly bind themselves to not trying to throw their weight around in the future.

So here in the context of a thread on "Can WotC be forgiven?", I would suggest to WotC that they make something like my proposed guarantees in the license. That's the best they can do to bind whomever winds up owning the copyrights to the SRDs in the future. (Based on my vague layman's understanding of bankruptcy law, that might well fail to survive a liquidation where a private equity firm buys the copyrights in an auction, but, the best possible is the best possible.)

In the context of what actions should be taken by 3PPs, I would say "First and foremost, band together to defend the OGL 1.0a in court. Setting up a license like ORC and preparing a theoretically non-derivative but similar system so that there's somewhere to retreat if that fails is not a bad fallback plan, but first and foremost, defend the OGL 1.0a."

 

[clearstream]

In my view it's not revocable. More accurately, it's unlikely a court would say it was revocable. It is unlikely IMO that a court would say Hasbro could legally prevent others from using released SRD material with OGL 1.0. The licence gives users the right (& obligation!) to sub-licence the OGC in their publications to future users/publishers. That's why it's an Open License. It opens up the material for use.

I missed some of the discussion. The last point I got up to was where some were saying that the licence would need to incorporate the word 'irrevocable' to be irrevocable.

Did you conclude however that the right and obligation to sub-licence implies an irrevocability? Is that solely to the extent needed to permit said sub-licensing to be done in good faith?

 

[EzekielRaiden]

I missed some of the discussion. The last point I got up to was where some were saying that the licence would need to incorporate the word 'irrevocable' to be irrevocable.

Did you conclude however that the right and obligation to sub-licence implies an irrevocability? Is that solely to the extent needed to permit said sub-licensing to be done in good faith?

I believe the argument is that we have the original framers of the license, who wrote that license based on other "open content" licenses, which did not use the term "irrevocable" at the time but had the intent of being irrevocable. Both the original authors' statements and essentially all discussion around the license up to this point have been pretty clear that the license could not be revoked. It is of course still possible that a court could rule "well because you didn't actually say that, even though it wasn't in common practice at the time, it doesn't count." But having the license's creators on hand to clarify is a pretty significant thing, and having literally years and years of people talking about the license as irrevocable is also pretty significant.

 

[see]

I missed some of the discussion. The last point I got up to was where some were saying that the licence would need to incorporate the word 'irrevocable' to be irrevocable.

Well, for example, the EFF post on the OGL 1.0a originally said that, but then it was updated to change its position. This is because, per them, there's a legal difference between a unilateral license, and a contract with obligations on both sides. If the OGL 1.0a were the former, it'd be revocable if it didn't say it was irrevocable. If it's the latter, then it's not revocable. The question is which is the OGL 1.0a falls into, and the EFF says, based on things like the OGL FAQ, it's the latter.

 

[S'mon]

I missed some of the discussion. The last point I got up to was where some were saying that the licence would need to incorporate the word 'irrevocable' to be irrevocable.

Did you conclude however that the right and obligation to sub-licence implies an irrevocability? Is that solely to the extent needed to permit said sub-licensing to be done in good faith?

Legally, they can revoke their offer to license (their offer to contract).
They can't terminate their ongoing contracts with existing licensees.
Those licensees have the right & obligation under their OGL contracts to license use of the OGC in their publications under the terms of the OGL.

 

[clearstream]

Legally, they can revoke their offer to license (their offer to contract).
They can't terminate their ongoing contracts with existing licensees.
Those licensees have the right & obligation under their OGL contracts to license use of the OGC in their publications under the terms of the OGL.

That is what I had thought, and was referring to. They can revoke their offer to license.