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

pemerton

Legend
So perpetual and irrevocable have meanings in law. Deauthorize does not.
This isn't really accurate. Interpreting a written contract, in the common law, is about establishing the intention of the parties as conveyed by the words that they used to record and express their agreement. The use of particular words might help in some contexts, but (as a general proposition) no particular consequences flow automatically from particular choices of words.

This is also relevant to ORC, in my view:
None of the companies involved in its creation are likely to become as large as Hasbro (not least because their are several of them), and even if they do they will not control the text of the licence itself in the way that WotC do. It will have learned the lessons from the OGL, including the recent debacle, and attempted to head prevent history repeating itself.
I don't think the drafting of the OGL is the real issue here. The claims that WotC are making are of course expressed in terms of the drafting, but were it drafted differently WotC would just frame its claims differently.

The key thing is that WotC is throwing its commercial weight around (including its capacity to fund its own litigation) and using what I think are dubious-to-spurious legal claims as a type of fig leaf. The drafting of ORC won't prevent that sort of thing happening in the future. It's the size, and even more so the relative sizes, of participants in the licensing scheme that seems more relevant to this issue (as per the first bit of @glass's quoted post).
 

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Maxperson

Morkus from Orkus
This isn't really accurate. Interpreting a written contract, in the common law, is about establishing the intention of the parties as conveyed by the words that they used to record and express their agreement. The use of particular words might help in some contexts, but (as a general proposition) no particular consequences flow automatically from particular choices of words.
Saying a contract is perpetual, though, doesn't automatically mean irrevocable. You need to look at more to figure it out. A contract that is saying that it is irrevocable is pretty clear about what it means.
 

Well, yes, lawyers here are technically split on that, but only in the sense that one lawyer posting in this thread said they could, and every other lawyer posting in the thread said that lawyer was wrong.
I have seen less lawyers (and law people because there were 2 paralegals and someone that said they were lawyer adjacent what ever that means) side with it CAN be revoked but it's more then 1 here and elsewhere. the majority say it shouldn't or couldn't be revoked.

However several of the peeps saying it shouldn't are giving it 3/4 odds or 9/10 odds and 1 person literally say 1 IN 20.

So I think from what I see IF it went to court and IF it went all the way through trial, the 3pp will have the advantage, but it wasn't a forgone conclusion.
 

mamba

Legend
I think this is the key question that would need to be resolved by a specific court in a specific case.
IANAL, but I take this to mean, you cannot freely enter, as in you also have obligations under the license, not just rights. If my understanding is true, then I am not sure why that even is a question.

You have to include the license, you have to specify the OGC, you specify your PI. To me that should be enough to make it clear
 



Jerik

Explorer
So I think from what I see IF it went to court and IF it went all the way through trial, the 3pp will have the advantage, but it wasn't a forgone conclusion.
Oh, absolutely it's not a foregone conclusion; I didn't mean to imply it was. I just thought saying lawyers here were split on the matter was a little misleading when only one lawyer here had said it was revocable. (Though yes, even the lawyers who argued that it was irrevocable admitted that court cases were unpredictable and there were no guarantees.)

I think Maxperson is partially right in that yes, a license that said it was irrevocable would probably be harder to get out of; I just think they're being a little too dogmatic in insisting WotC could never have tried this if that word were there. From what pemerton and others have been saying, WotC could still have come up with clever wording to try to weasel their way out of the license even if it said it was irrevocable; no matter what wording was in the contract, they could still construct an argument to get out of it. (Whether that argument would hold up in court is another matter altogether, but irrelevant if it never goes to court.)
 

Matt Thomason

Adventurer
IANAL, but I take this to mean, you cannot freely enter, as in you also have obligations under the license, not just rights. If my understanding is true, then I am not sure why that even is a question.

You have to include the license, you have to specify the OGC, you specify your PI. To me that should be enough to make it clear

Possibly of additional legal weight here is that you waive your usual fair use rights to WotC IP as a part of the OGL, I'd probably make an argument you potentially restrict your own sales reach as a part of that agreement and therefore the agreement had a material cost to the licensee beyond opening some of their own content.
 

CapnZapp

Legend
Please stop arguing with publishers about what publishers are going to do. At the very least, if you believe your opinion is valuable, advise them on what they should do. Your repetition of "the trust is gone" and insistence that you know what publishers are going to do is incredibly tiresome. :whistle:
You know Greg, I'm not having a private conversation between paid professionals here. We're just gamers discussing on an online forum, and I'd appreciate it if you would at least pretend you think we're all equal here. So no, I'm not "arguing with publishers". I'm partaking in an open group discussion between anonymous internet users. And that particular discussion has very clearly ended anyway, so... yeah.
 

pemerton

Legend
I think this is the key question that would need to be resolved by a specific court in a specific case.
No doubt past statements by former WotC employees would play a role in resolving the question!
It's not really possible to predict the course that future litigation might take.

But if I was setting this is as an exam problem, here's roughly how I would see some of the key issues breaking down:

Identify offer and acceptance: an offer to the all the world (a la Carlill v Carbolic Smoke Ball Co), with acceptance established by the appropriate mental state accompanying use of the SRD content. The original licensor can retract that freely-made offer at any time.

Identify consideration flowing in both directions: the licensor promises grants a licence to use their OGC (as defined by the terms of their offer ie the licence text); the definitions of use etc mean that this includes a power to sub-licence, which seems to be reinforced by the reference to sub-licences in section 13. The licensee, in return, promises to offer to the world to licence their OGC on the same terms (and unlike WotC as original licensor, they are bound not to retract their offer), and also promises to refrain from exercising certain privileges of use they might enjoy in respect of some of the licensor's trademarks and/or copyrights (to spell this out fully would mean going into the definition of product identity, and into doctrines around fair use and use of a trademark without passing off, etc).

This discussion would carry more marks than the discussion of offer and acceptance, but ultimately doesn't seem that difficult.

Identify other interesting legal features of the contractual regime created: one of these is the power that WotC enjoys, under section 9, to promulgate variant licences, and the concomitant power of licensees to choose which licence to use when they use others' OGC. There are at least two aspects of this a good answer might tease out in more detail: (i) to what extent must a variant licence replicate the terms of the OGL itself in order to count as a "version" for section 9 purposes (a good answer would approach this in terms of (i)what contractual permissions has a downstream licensor granted to (a) WotC to establish new terms for downstream licences and (b) downstream licensees in respect of their use of the licensor's OGC); (ii) what if any legal consequences flow from the different wording used in section 9 compared to section 4 to describe the licensee's entitlements (ie is this of legal significance, or just a drafting infelicity)? I think this is harder than either of the above points - the text of the contract doesn't take it all that far in my view, and more thought has to be given to establishing a plausible account of the contractual regime the parties are creating. Concepts of "reasonableness" might have some work to do in this analysis.

Another of these interesting features is the way that section 13 operates to preserve sub-licences even in the event of termination for breach. I think this is easier than the section 9 analysis, but there is scope both for technical work (ie even terminated licensees remain parties to the contract to the extent that their promise to downstream licensees conferring permissions and powers on those licensees remains on foot) and practical analysis (ie the role of this in supporting the network of interlocking contracts that creates the OGC "ecology").

A third interesting question, and the one raised by the OP, is what powers - grounded in their intellectual property rights - do contractual parties retain to revoke or vary the terms of the licences they have granted? Do these follow the contract, or do they obtain independently of the contract but potentially give rise to breaches of the contract if exercised? Answering this requires knowledge both of IP law in general, including the power that parties enjoy under that law to vary the incidences of their own ownership of intellectual property; and also articulating an interpretation of the contract insofar as it bears on these matters. This second part of answering the question would draw on the use of the word "perpetual", the presence of section 13, the absence of an express power of revocation, etc. The past conduct of WotC, both what it said to (actual and prospective) licensees and how it acted or didn't act in relation to them, would be relevant at this point also.

Consider consequences of, and remedies for, breach: if WotC purports to revoke the licence, and on the better view of things does enjoy such a power, but in doing so is in breach of the contract, do licensees get damages for breach? or can they insist that they still enjoy the licensed permissions and powers? Does it make a difference to this if the licensee is plaintiff - and hence seeking a remedy - or defendant to a copyright suit - and hence seeking to simply stand on its contractual rights? Etc.​
 

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