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

[pemerton]

I think your latter question is a bit unfair on 'the community'. No, I think WoTC had this plan in mind all along.

Perhaps.

I still think that they are trading on the widespread tendency to treat the OGL as if it were a public law-type arrangement (with a legislator who can amend or repeal) rather than a private law one.

I think if there were more widespread understanding of how the OGL works in legal terms, there would be more outrage at what WotC is doing framed not just in terms of "trust" or commerciality, but in terms of legality.

 

[mamba]

The leaked OGL 2.0 also has a lot of provisions that contradict the promises WotC made in their January 13 statement, so I'm not sure if this will be implemented anymore.

I do not trust their promises or a leaked FAQ

 

[pemerton]

If WoTC has the right change the terms of the OGL implicitly, the why should it be explicit in the the new one? And why in 22 years was it never changed?

Answer to second question: see answer to first question.

Answer to first question: the better legal view is that they don't, and that they're now making it up.

EDIT to be less flippant: you may have seen upthread @S'mon's post referring to a "strained" interpretation of section 9.

Up until a month ago, the notion that section 9 confers a unilateral power of variation was never canvassed by anyone. Everyone, including WotC when they published their FAQ a couple of decades ago, understood section 9 to have the meaning it has on a natural language reading, namely, that it permitted WotC to promulgate new versions of the licence, and permitted licensees to pick and choose which one to use.

 

[S'mon]

The terms of a licence can't stop anyone doing anything. They are inert legal norms.

I mean, the terms of the OGL prohibit WotC doing what it is currently purporting to do, but it is going right on ahead!

What makes legal prohibitions effective, when actors that they bind choose to ignore them, is enforcement. If no one is willing to sue then the terms are meaningless.

This reminds me of when my Tennessean then-wife was working for Brent council in London. Brent council had been screwing over some allotment owners for years. Eventually the problem was fixed. She recounted this conversation to me (I paraphrase):

Allotment owners, grumbling: "How do we know you won't try to screw us over again?"
Wife: "You don't. You have to watch us like a hawk. The price of freedom is eternal vigilance!"

She explained that there was nothing to stop the local government from trying to screw them over again - nothing but their own vigilance, and their readiness to take action to stop the government taking away their rights. To men trained in the British culture of deference to authority, this was quite a shock. Apparently they found it very bracing.

 

[pemerton]

This reminds me of when my Tennessean then-wife was working for Brent council in London. Brent council had been screwing over some allotment owners for years. Eventually the problem was fixed. She recounted this conversation to me (I paraphrase):

Allotment owners, grumbling: "How do we know you won't try to screw us over again?"
Wife: "You don't. You have to watch us like a hawk. The price of freedom is eternal vigilance!"

She explained that there was nothing to stop the local government from trying to screw them over again - nothing but their own vigilance, and their readiness to take action to stop the government taking away their rights. To men trained in the British culture of deference to authority, this was quite a shock. Apparently they found it very bracing.

So whereas I'm not an expert on IP law, I would regard myself as a bit of an expert in the rule of law literature.

A recurring them in some of that literature is "the culture of legality". And the UK is often put forward as an example (so is Australia): that is, that important actors treat the legal constraints on their action as actual constraints. A contrasting view is that set out in this (translated and then paraphrased) Bulgarian proverb: The law is like a gate in an open field - you could pass through it if you wanted to, but only a fool would bother!

So I would see the allotment owners not only as manifesting the British culture of deference (which I accept is a real thing) but also a bit of a shock at the departure from the culture of legality.

In the rule of law literature, the US is also normally held up as a culture-of-legality society. And compared to Bulgaria that is probably true. Even this WotC episode is not a counter-example, in the sense that we've got good reason to think that if the matter went to court the judges wouldn't be bribed, the orders would be issued in a lawful fashion, and WotC would not use extra legal means (eg sending stand-over men to threaten the litigants) in order to circumvent an adverse ruling.

But I do think that especially in the US, eand specially among wealthy private actors, there may be the occasional need to litigate in order to remind them of the force of legality!

 

[Matt Thomason]

I'm talking about Paizo sending everyone a memo, just like WotC has done, asserting that it enjoys legal rights to do <whatever it wants to do> and insisting that everyone else accept that.

It's working for WotC even as we exchanges message board posts! The fact that the powers that WotC is purporting to exercise are not ones that it enjoys under the OGL aren't stopping it from purporting to exercise them.

My thinking here goes along these lines.

I have a choice of two potential business partners to share an office with. Each is armed with a fairly lethal poison dagger. One has stated in private conversation to others that their future plans include the possibility of stabbing me with their dagger.

While I still have to rely on the law to prevent either stabbing me, my sense of self-preservation tells me that I may be safer stuck in an office with the one that has not, to my knowledge, expressed wishes to cause my death.

I shall still, of course, be watching the other like a hawk for signs of that dagger leaving its scabbard when we're alone together.

 

[pemerton]

@Matt Thomason

I'm not sure I'm going to go all the way with your lurid metaphor!, but I see your point and don't (and never have) disagreed with it.

My point is a bit different: there seems to be a fairly widespread view that the commercial rationality you point to is buttressed by a legal rationality. And that's what I'm disagreeing with.

EDIT: My disagreement isn't just to be contrary. Part of what has permitted the current furore to emerge is poor understanding, among the RPG community, of how the OGL works in legal terms. Going into new licences on the basis of a continued poor understanding seems almost an invitation to further future furores.

 

[S'mon]

In the rule of law literature, the US is also normally held up as a culture-of-legality society.

In the way you mean it, I think the US is definitely in between England and Bulgaria. I think most British people tend to think of American culture generally as a lot more like ours than it really is. My guess or impression would be that 'culture of legality' level varies across the USA (just as it differs somewhat between England and Scotland, something the English seem to have a lot of trouble believing when I tell them! An Irish student though this year piped up to say she knew just what I meant, since Ireland was quite different from England, too). I'm only really familiar with the culture of the US South, especially Tennessee, but I think most of the rest of the country is also very different from England.

 

[pemerton]

@S'mon, agreed re post 1848. I think board rules preclude going further into it, though I can probably say this without crossing any lines: most of the American academics who write on the culture of legality probably experience life in the US differently from the actual "data points" that would answer the question in an empirical sense.

 

[Matt Thomason]

@Matt Thomason

I'm not sure I'm going to go all the way with your lurid metaphor!, but I see your point and don't (and never have) disagreed with it.

My point is a bit different: there seems to be a fairly widespread view that the commercial rationality you point to is buttressed by a legal rationality. And that's what I'm disagreeing with.

EDIT: My disagreement isn't just to be contrary. Part of what has permitted the current furore to emerge is poor understanding, among the RPG community, of how the OGL works in legal terms. Going into new licences on the basis of a continued poor understanding seems almost an invitation to further future furores.

Wait. You thought that was a metaphor?

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