My thoughts on the new OGL v1.2 draft

[pemerton]

If I am understanding a "declaration" right, it can preemptively prevent an attempt to "de-authorize" the OGL 1.0a. At least jurisdictionally.

If you are familiar with what a declaration can do, can you clarify?

A declaration of right - also called (at least in my jurisdiction) declaratory relief or just a declaration -is an authoritative statement, by a court, as to what the legal rights of the parties are.

That's what it does. It has no further consequences. It's not an injunction.

 

[Yaarel]

A declaration of right - also called (at least in my jurisdiction) declaratory relief or just a declaration -is an authoritative statement, by a court, as to what the legal rights of the parties are.

That's what it does. It has no further consequences. It's not an injunction.

Can a Declaratory Relief enforce the right to continue using the OGL 1.0a?

 

[pemerton]

I am not sure why people are using emotional arguments against what pemerton is saying.

<snip>

If I am remembering right, he is not even a USA lawyer and has not passed the bar exam in a U.S. state.

I'm Australian. I'm not admitted to practise in any jurisdiction - I am an academic. I teach both private law and public law. I have published on some aspects of IP law, but it's not my field - I worked with a colleague who is an expert in trademark law. My expertise that is relevant in this context is in estoppel (as that doctrine works in Australia), private law theory, and legal interpretation (both theory and practice).

The arguments that I'm flagging - which focus on textual interpretation of the contract against the background of general private law principles - reflect my expertise. I do my best to make it clear that I'm not being dogmatic, and to explain what I see as the strengths and weaknesses of various interpretive arguments.

WotC's conduct and representations in its FAQ, on mailing lists, and in other correspondence, are also highly relevant to this OGL situation. Just as I said in 2008, they may establish an estoppel. And they may also be relevant to interpreting the contract. But I am not saying as much about them, for the reason that whether and how those facts could be led in litigation isn't something I can comment on with any expertise - except to say that those details will turn heavily on the broader details of WotC's case and the defence led by a 3PP.

 

[pemerton]

Can a Declaratory Relief enforce the right to continue using the OGL 1.0a?

No. It's a declaration of right. That's it. It's not an order that generates new obligations on any party. (And so contrasts with specific remedies like injunction or specific performance, or money remedies like damages, all of which impose new obligations on the party against whom they are made.)

 

[Yaarel]

No. It's a declaration of right. That's it. It's not an order that generates new obligations on any party. (And so contrasts with specific remedies like injunction or specific performance, or money remedies like damages, all of which impose new obligations on the party against whom they are made.)

But there is no "new obligation".

The point is to declare, the same rights enjoyed since year 2000 remain in effect.

Can a Declaratory Relief apply in this case?

 

[rcade]

I paid a lot of money to lawyers (like $10’s of millions) in my career and denying reality when they are giving you a legal reading is really counter productive.

The contributions of lawyers and legal experts are extremely valuable but there are aspects of what they say that are worth some pushback.

This isn't just about the law. It's about what thousands of gamers believed about the OGL for 23 years, the actions taken because of the OGL and what we should do in response to Hasbro's attack on the commons.

If Hasbro loses badly enough in the present it could declare victory and do nothing to the OGL. There'd never be a court case for the lawyers here to be right about.

 

[overgeeked]

And then it's a new precedent.

If a court were to find that an open license modeled on the GPL can be "deauthorized", then it means the GPL can probably be "deauthorized". And then everyone who licenses their software under the GPL can release a notice saying "Hasbro Inc., its subsidiaries and licensees are no longer authorized to use any software developed under the GPL" and suddenly they'd be unable to use anything more recent than Windows 3.11.

Yeah. But that won’t happen. So why spend time talking about it? You honestly think all software companies will magically band together and deny Hasbro the ability to use their collective software?

 

[pemerton]

But there is no "new obligation".

The point is to declare, the same rights enjoyed since year 2000 remain in effect.

Can a Declaratory Relief apply in this case?

I'm not sure what you're asking.

A party to the OGL with WotC could sue seeking a declaration that it continues to enjoy contractual rights in respect of use of OGC even if WotC were to withdraw its offer to license the SRD to all comers. If it won, then the court would declare that they enjoy those rights under the contract.

How WotC responded to that would depend on its legal advice.

Generally, declaratory relief is sort against parties who can be relied upon to bring their behaviour into conformity with their known legal obligations - governments (at least in rule-of-law countries), law and accounting firms (at least those that rely on their reputation for excellence and probity), etc. Whether WotC could be relied upon to bring its behaviour into conformity with its declared legal entitlements is something that others can conjecture on.

 

[Yaarel]

I'm not sure what you're asking.

Heh, how can you not be sure what I am asking?

How would you use the Declaratory Relief to end the threat of an Anti-OGL?

A party to the OGL with WotC could sue seeking a declaration that it continues to enjoy contractual rights in respect of use of OGC even if WotC were to withdraw its offer to license the SRD to all comers. If it won, then the court would declare that they enjoy those rights under the contract.

Ok. So here you are saying, if WotC tries to de-authorize the OGL 1.0a, those who participate in the OGL 1.0a can seek a Declaration to continue using the OGL 1.0a.

Is there nothing to be done preemptively, before Hasbro-WotC tries to deauthorize?

Whether WotC could be relied upon to bring its behaviour into conformity with its declared legal entitlements is something that others can conjecture on.

Yeah.

 

[Aspirinsmurf]

Could there be a case for WotC's current actions alone amounting to tortious interference, with all the FUD? One guy on Twitter wrote that he had lost Patreon supporters over this debacle. There are Kickstarter projects in shambles right now, with backers leaving left and right.

Tortious interference - Wikipedia

en.wikipedia.org