I took the OP to be explaining some of the legalese that people are thinking is evidence of a malevolent plot is simply language that gets used in most contracts and probably just got included as standard contract stuff. I didn't think they were asserting that therefore it couldn't be challenged or debated.
That's pretty much it. I thought this was pretty explicit- and it's also why I referred back to the prior post on legal-ese (why attorneys write the way that they do), but it's why it can be difficult to read some of the more conspiracy-minded conversations.
Part of this is you have to start with a basic understanding that the OGL 1.2 is not an "open" license, and, moreover, that OGL 1.0(a) is not ... well-written. These are two concepts that I think that a lot of people struggle with, and are confusing them as to why the two licenses are different.
Going in reverse order- OGL 1.0(a) is not (from a legal standpoint) well-written. Now, I know what many people will say- "Of course it is well-written!!111!!111! People have relied it on it for decades!!!111 NO SUITZ BRAH! Why do you hate the community????"
I mean ... yes. In a certain manner, it
is well-written given that it has served its purpose well and that there has been no litigation. But ... the test of a contract is never what happens when things go well. It's what happens when, um, two sides stop being polite and start getting real. To use an example that people might understand a little better- ignoring statutory provisions, if your second cousin, who you get along with great, moves into your spare bedroom and agrees to pay you $500 a month, that probably will work. On the other hand, most landlords and tenants probably have had experiences that make them realize that contracts (in this case,
leases) are necessary when things aren't working as well.
On the OGL 1.0(a), if you look at it, you can see that it has typos, was poorly adapted from a software open license for a use that it was not intended for (to allow the dissemination of some, but not all, protected content), and is replete with terms that are ambiguous and provisions that are unclear when read in conjunction with each other. And yet it was also wildly successful because it
generally set out the rights and obligations in a manner that people understood (or thought they understood). But that poor writing? I would assume that when (or if?) ORC is released, it will be different. At least, I really hope so. Anyway, the reason no one really paid that much attention to some of the more questionable parts of the OGL 1.0(a) before is because people assumed they knew how it work- it never was tested ... much in the same way that you might generally understand how your lease works (first, last, security deposit, rent is due on this day) but never really paid too much attention to the details.
The new OGL is not that- it is certainly
not an open license in the same way. It is a license that has restrictions and conditions- it is is only open in the sense that it is being offered to everyone. And because of that, it will have different provisions. And some of those will be the same boilerplate provisions that licenses tend to have.
One of those is the class action waiver; it's kind of funny, in a way, because as I wrote above, this waiver contains language that could not possibly apply but is simply boilerplate for these waivers - while I welcome being corrected, I cannot imagine how this would apply to a
collective action. Moreover, it is extremely unlikely to apply to any class action. But any attorney would recommend putting it in there- after all, this isn't an open license, and putting this out to the world while not having a limitation on class actions would be crazy, even if the chance of it having is almost 0.
None of this is really about the utility or morality of this, or other boilerplate terms. But (as you correctly surmised) it is about understanding why these terms are there.
