Legal Discussion of OGL 1.2

[rcade]

The OGL is supposed to be listed in your section 15 declaration, so wouldn’t that give Hasbro standing in this situation?

Hasbro might, but it would be arguing "nobody can copy our license" at the same time it argues "everybody must copy our license."

If a court had to rule on this, it might use the Reformation clause as justification to allow "You MUST include a copy of this License with every copy of the Open Game Content You Distribute" to be changed to "You MUST include a declaration that you are following Open Game License 1.0a with every copy of the Open Game Content You Distribute." Or it could tell Hasbro that because it offered this open license for 23 years and many works continue to be legally publishable under its terms, Hasbro must allow its text to be included in licensed works.

 

[pemerton]

I'd like to hear what lawyers think about the Severability Clause in OGL 1.2. As an author I've signed a lot of contracts that had a Severability Clause. I've never seen one that also says "if any of this is held to be unenforceable we can choose to cancel the entire thing." That's the opposite of severability!

100%! It is the opposite of a normal severability clause.

I think not quite the opposite! I mean, it does contain the standard severability wording. It just also confers on WotC a power to terminate the whole thing rather than proceed subject to the severance.

If I was a prospective licensee I would be fairly conscious of the variety of powers this licence gives to the other party.

 

[pemerton]

If Hasbro forbid the reproduction of OGL 1.0a and publishers started putting "This work is licensed under the terms of Open Game License 1.0a (not reprinted here) and has the following Section 15 and identification of Open Game Content and Product Identity," the only parties with standing to call it a breach of the license are the ones in Section 15. But Hasbro isn't going to tell a publisher "You are violating the OGL by not including the contract we told you not to include."

WotC/Hasbro wouldn't have any standing that I can see - they're not a party to a contract between (say) you and me.

So I think your suggestion is one potential way around the issue!

 

[pemerton]

The OGL is supposed to be listed in your section 15 declaration, so wouldn’t that give Hasbro standing in this situation?

Why?

We're talking about a licence agreement between (say) you and me, where we have agreed to licence our content to one another on terms set out in the OGL. So we've promised one another to publish, under the specified conditions, text that is copyright WotC.

If we decide to instead use @rcade's solution, we are in breach of our promises to one another but the breach seems pretty trivial, and (assuming we both want to preserve our particular OGC ecosystem) neither of us is going to complain and each of us could even make a statement that we waive our right to have the OGL published in full.

(There are complexities around section 13 - does our breach terminate all the licences if we don't cure? - but it should be possible to issue some sort of properly drafted waiver to avoid that result for this particular breach.)

However exactly we do it, I don't see how WotC has any interest in the matter.

 

[Aspirinsmurf]

However exactly we do it, I don't see how WotC has any interest in the matter.

I could see some hypothetical scenario where WotC could argue that they haven't given anyone permission to use the license text itself in such a case. The "THIS LICENSE IS APPROVED FOR GENERAL USE" language is from the Open Gaming Foundation (which doesn't legally exist, it's an alias of Ryan Dancey) and not straight from the horse's mouth, and according to what you've been saying here... well, it would be a gratuitous offer that could be revoked at-will anyway, wouldn't it?

 

[bmcdaniel]

There is no straightforward way for a private party to bind themselves in respect of a gratuitous offer made to all the world. That's the nature of the common law of contract.

As with every legal principle there are nuances etc. I don't immediately see any nuance here.

Not actually correct. There is a legal instrument called a Deed Poll which a private person can use to bind themselves to the entire world. I use them frequently in international agreements where countries only weakly support 3rd party beneficiaries. Originally arose out of real property but also usable in other contexts. Not very much used in the US, however.

 

[pemerton]

Not actually correct. There is a legal instrument called a Deed Poll which a private person can use to bind themselves to the entire world. I use them frequently in international agreements where countries only weakly support 3rd party beneficiaries. Originally arose out of real property but also usable in other contexts. Not very much used in the US, however.

Fair enough. That's the sort of thing I was putting under nuance. I don't think WotC is planning to use that sort of device.

 

[mamba]

Is the specific way they worded irrevocable "meaning that content licensed under this license can never be withdrawn from the license" different from the kind of irrevocability we have demanded for OGL v1.0a?

yes, at least according to some, they can still withdraw the offer altogether, to prevent this they have to make it fully irrevocable, not sure this is the legal term, but it is the one used by that lawyer

 

[mamba]

I was reading the license alongside a lawyer friend (mind you, we live in a Civil Law country so he's not an expert on American trademark law!) and he said that's standard legal disclaimer that lawyers put to cover their behinds.

it might be, but I do somehow not trust WotC with that, not sure why…

Is there a less ‘abusable’ common term that can be used instead?

 

[mamba]

They probably can't stop Project Black Flag from happening, but they want to make sure you can't use Foundry VTT with all those bells and whistles to play 6e.

I have two solutions

1) remove the VTT policy altogether
2) have a clause that restricts WotC’s VTT to the terms of that policy in the OGL